Terms And Conditions
Terms And Conditions
Subject to the terms and conditions of this Agreement, ZenIQ shall provide its Software as a Service (the “Product” or “Service”) and hereby grants Customer, during the Term, a non-exclusive, non-transferrable, and non-sublicensable right to access and use the Service, as a result of acceptance by Customer through executing an applicable Order Form that references this Agreement.
1.1 Customer understands that when they sign an Order Form referencing this Agreement, they are doing so on behalf of a Company or other legal entity, and have the authority to bind such entity to this Agreement and its terms and conditions. They may not use the Service, if they do not have such authority.
1.2 Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or anything related thereto or any direct product thereof in violation of any applicable laws or regulations.
1.3 By entering into this Agreement, Customer is attesting to not being a direct competitor to ZenIQ.
ZenIQ shall invoice Customer the fees for the entire term and Customer shall pay ZenIQ the fees due for the Service as set forth in the Order Form (“Fees”). Fees are non-cancelable, nonrefundable and are exclusive of taxes, levies, or duties imposed by taxing authorities; Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on ZenIQ net income). In the event ZenIQ pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse ZenIQ. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower.
- Intellectual Property Rights.
ZenIQ owns and shall retain all right, title and interest in and to the Service (excluding Customer Content) and any products or results thereof.
3.1 Customer shall own the Customer Content (as defined below). Customer hereby represents and warrants that it has all right, title and interest to the Customer Content. Customer shall be solely responsible for the accuracy, quality, integrity and legality of Customer Content. Customer hereby grants to ZenIQ a limited, revocable, non-transferable, non-exclusive, worldwide license to use Customer Content solely in connection with performing the Services. “Customer Content” means any material uploaded or supplied directly to ZenIQ by Customer, or accessed by ZenIQ from Customer, in the course of Customer’s receiving or using the Service, including without limitation, images, videos, text, data (including personally identifiable information), and code. ZenIQ shall have the right to collect and analyze data and other information relating to the use and performance of various aspects of the Service and related systems and technologies, and ZenIQ shall be free to (i) use such information and data (during and after the term hereof) to improve and enhance the Product and for other development, diagnostic and corrective purposes in connection with the Service and other ZenIQ offerings, and (ii) disclose such data in aggregate or other de-identified form in connection with its business.
3.2 Customer is not obligated to provide any feedback or suggestions to ZenIQ regarding the Service. However, if Customer elects to provide any feedback or suggestions about the Service, e.g., improvements, enhancements or corrections of bugs, defects or errors, etc. (collectively, the “Feedback”), Customer acknowledges ZenIQ’s need to be able to freely use any Feedback as it relates to ZenIQ’s proprietary services and solutions. Accordingly, Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligations for ZenIQ and ZenIQ shall be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without any payment obligations or restrictions of any kind on account of intellectual property rights or otherwise.
- Confidentiality; Restrictions.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information shall also include the terms of this Agreement. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law. Further, Customer shall not, and shall not permit any third party to reverse engineer or otherwise attempt to discover the source code or underlying structure or algorithms of the Services (except to the extent such restrictions are contrary to applicable law), modify or create derivative works of the Services, copy, distribute, resale, sublicense, use for third parties or permit third parties to use, or otherwise use or allow use of the Services outside of the scope permitted under this Agreement.
Customer hereby consents and gives permission to ZenIQ to reference and use Customer’s name and logo in ZenIQ’s business development, website, and other sales and marketing efforts.
- Terms and Termination.
5.1 The initial term of this Agreement shall begin on the Effective Date and shall continue for the period specified in applicable Order Form (the “Term”). Unless otherwise specifically mentioned in the Order Form, the Agreement shall automatically renew for each successive year at the end of the Term with a 10% increase on annual subscription fees.
5.2 Non-renewal: In case Customer chooses to not renew the contract for subsequent Term, Customer shall notify in writing of such intent at least thirty (30) days prior to the expiry of the then current Term. In absence of such explicit written notice, contract shall automatically renew for another annual Term.
5.3 Either party may terminate this Agreement upon written notice to the other party if such other party materially breaches this Agreement and does not cure such breach within thirty (30) days after receiving written notice of such breach. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
Additionally, ZenIQ reserves the right to suspend or terminate the Service if Customer fails to pay any amounts that are payable to ZenIQ under this Agreement (other than disputed amounts withheld in good faith) within sixty (60) days after any such amount becomes due. Termination or expiration of this Agreement shall not affect any rights or obligations of the Parties, including the payment of amounts due, which have accrued up to the date of such termination or expiration. Upon termination or expiration of this Agreement, the provisions of Sections 2, 3, 4, 6.2, 7, 8 and 9 shall survive and shall continue in full force and effect in accordance with their terms.
5.4 Contact Usage Restrictions: Customer shall use all contacts, acquired via Service, strictly for its own internal use in sales and marketing; furthermore and more explicitly Customer shall not under any circumstances reproduce, distribute, display, sell, publish, broadcast, or circulate these acquired contacts to any third party, including but not limited to its own end customers or business partners. This is a back to back usage terms of this data strictly imposed and regulated by such data providers for which ZenIQ only acts as pass through / enabling channel.
- Warranties; Disclaimer.
6.1 ZenIQ warrants that (a) it shall perform the Service in a professional and workmanlike manner, (b) the Service shall conform in all material respects to any specifications in applicable Order Form, and (c) the Service, excluding any Customer Content, do not infringe any third party intellectual property right.
6.2 EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6.1, ZENIQ HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WARRANTIES WITH RESPECT TO THE PERFORMANCE AND RESULTS OF THE SERVICES, GENERATION OF ANY PARTICULAR NUMBER OF LEADS, VIRUSES AND SIMILAR CODE, NON-INTERRUPTION OF SERVICES, TIMELINESS, FREEDOM FROM ERRORS, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE.
- Limitation of Liability.
EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, OR EITHER PARTY’S BREACH OF SECTION 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING LOST PROFITS). ADDITIONALLY, EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 4 OR A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY OBLIGATIONS OR LIABLE FOR ANY DAMAGES, FOR ANY CLAIM IN EXCESS OF THE TOTAL LICENSE AMOUNT PAID (AND PAYABLE) TO ZENIQ IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM. THE FOREGOING DISCLAIMERS AND LIMITATIONS SHALL APPLY IN EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING DISCLAIMERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
8.1 ZenIQ agrees to indemnify, defend, and hold harmless Customer against any liabilities, damages and costs (including reasonable attorneys’ fees) payable to a third party arising out of a third party claim alleging that the Services infringe any third party intellectual property right. Notwithstanding the foregoing, ZenIQ shall have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon (i) any unauthorized use, reproduction, or distribution of the Services or any breach of this Agreement by Customer, (ii) any combination of the Services with other products, equipment, code, software, content, uses or data not supplied, authorized or recommended by ZenIQ to the extent such claim is caused by such combination, (iii) any modification of the Services by any person other than ZenIQ or its authorized agents or contractors or (iv) any activity after ZenIQ has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services (collectively, the “Excluded Claims”).
8.2 If ZenIQ reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, ZenIQ shall procure, at ZenIQ’s expense, for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, either party may, in its sole discretion, terminate this Agreement upon written notice to the other party and refund to Customer any prepaid amounts for unused Services.
8.3 Customer agrees to indemnify, defend, and hold harmless ZenIQ against any liabilities, damages and costs (including reasonable attorneys’ fees) payable to a third party arising out of a third party claim alleging that any of the Customer Content, or Customer’s use of the Services in breach of this Agreement, infringes any third party intellectual property right.
8.4 The party seeking indemnification (“Indemnified Party”) shall provide the other party (“Indemnifying Party”) with prompt written notice upon becoming aware of any claim, suit or proceeding subject to indemnification hereunder and shall provide reasonable cooperation to Indemnifying Party in the defense of or investigation of any claim, suit or proceeding. Indemnifying Party, at its option, shall have sole control of such defense, provided that Indemnified Party is entitled to participate in its own defense at its sole expense. Indemnifying Party shall not enter into any settlement or compromise of any such claim without Indemnified Party’s prior written consent, which shall not be unreasonably withheld, except that Indemnifying Party may without such consent enter into any settlement of a claim that resolves the claim without liability to Indemnified Party and without impairment to any of Indemnified Party’s rights or requiring Indemnified Party to make any admission of liability.
- Compliance with Law.
Customer assumes sole responsibility for its knowledge of, and compliance with the Federal CAN-SPAM Act of 2003, Canada’s Anti-Spam Legislation, European Union data protection laws, and all other anti-spam and other laws and regulations that may be applicable and acknowledges that it is solely responsible for the manner and purpose in which Customer and any other recipients from Customer utilize the buying center coverage data (including email addresses). In case of any violations of such laws or regulations, shall indemnify ZenIQ as provided in Section 8 above.
For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. ZenIQ shall be solely responsible for its income taxes in connection with this Agreement and Customer shall be responsible for sales, use and similar taxes, if any. ZenIQ shall be responsible for performance of its agents and subcontractors under this Agreement. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of New York without regard to the conflicts of law provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorneys’ fees. Without limiting anything herein, and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions and power failures. Neither party shall have the right to assign this Agreement, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. This Agreement, including together with all Exhibits hereto, completely and exclusively states the agreement of the Parties regarding its subject matter. It supersedes, and its terms govern, all prior or contemporaneous understandings, term sheets, proposals, memoranda of understanding, or other communications between the Parties, oral or written, regarding such subject matter. No waiver, change, or modification to this Agreement shall be effective unless in writing signed by Parties. Any notices in connection with this Agreement shall be in writing and sent by first class US mail, confirmed facsimile or major overnight delivery courier service to the address specified on the cover sheet of this Agreement or such other address as may be properly specified by written notice hereunder. The Parties agree that this Agreement may be signed using manual or electronic signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable. Any software and related documentation provided by ZenIQ hereunder are considered to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), such software and related documentation is provided to U.S. Government end users (a) only as a commercial end item and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
- Contact Us
Should you have any questions about these Terms of Service of ZenIQ, please contact us at email@example.com and someone will assist you anyway possible. You can also mail us with anything the old way at 160 Forest Ave, Palo Alto CA 94301.