THIS IS AN AGREEMENT BETWEEN YOU OR THE ENTITY THAT YOU REPRESENT (hereinafter “You” or “Customer”) AND Zeetaminds Technologies Private Limited (hereinafter “ZM/Provider”) GOVERNING YOUR USE OF ZM Software Tools.
1.1 ZM agrees to acknowledge any email related support queries with in 24 working hours. In case of the services provided by ZM are affected, the issues will be resolved on the earliest basis considering it a top priority.
1.2 The price is exclusive of taxes. Price is subject to revision based on changes in infrastructure and other costs.
2.1. ZM agrees effective from the Commencement Date in consideration of the payment of the Service Fees by Customer to supply the Service to Customer on a non-exclusive, non-assignable basis upon the terms and conditions of this Agreement.
2.2. Customer acknowledges that ZM may at any time, and without notice, incorporate licence management software into the Hosted Application for the purposes of ensuring that licence rights are not exceeded.
2.3. Customer acknowledges that it may not duplicate or copy the Hosted Application for any purpose.
2.4. Customer acknowledges that licences are non transferable between networks and that once a licence has been added it cannot be moved.
2.5 Customer acknowledges that after the initial period of licence has expired (1 month or 3 months or 1 year or multiple years) renewal licences for subsequent duration must be purchased from the Provider in order to continue with the service.
3.1. This Agreement shall commence on the Commencement Date and shall (subject to the payment of the Service Fees to ZM and the provisions for termination set out in this Agreement) continue unless terminated in accordance herewith.
4.1. The Service Fees will be communicated by ZM to Customer and Customer undertakes to pay to ZM the Service Fees. If such fees are not paid in accordance with the provisions hereof and any additional terms of payment communicated to Customer by ZM, all further access to the Zeetaminds Network will be blocked without notice.
5.1.ZM undertakes with Customer that it will use reasonable endeavours to provide the Service and each component, subject to Relief Events, in accordance with the Service Levels save where otherwise expressly provided for by this Agreement.
6.1. Outages or Service Interruptions may be made by ZM when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Service. ZM will use reasonable endeavours to minimise the Outages or Service Interruptions that may result.
6.2. If Outages or Service Interruptions are required under Clause 6.1 (“Scheduled Interruptions”), ZM use reasonable endeavours to schedule Scheduled Interruptions so as to minimise impact on the Service and will notify Customer of the anticipated commencement time of the Scheduled Interruption and its estimated duration.
6.3. ZM shall provide initial notice to Customer’s Representative as soon as reasonably possible by email to the address notified on sign-up to the Service (or such other address as may have been subsequently notified) after becoming aware of an event that has caused or may cause an unscheduled Outage and use reasonable endeavours to keep Customer’s Representative informed of progress. In the event Customer first becomes aware of such event, the Customer shall promptly notify ZM via email.
7.1. Provider warrants to and undertakes with Customer that:
7.1.1 Provider will use its reasonable efforts to provide the Service and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
7.1.2 Provider has full right power and authority to provide the Service to Customer in accordance with the terms of this Agreement.
7.2. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS CLAUSE 7, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICE IS AT ITS OWN RISK. PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
7.3. Provider does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof). Although Provider will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Provider cannot guarantee that such events will not occur. Accordingly, Provider disclaims any and all liability resulting from or related to such events.
8.1. Customer undertakes at all times during the Term to comply with all current System Management Regulations. ZM shall give not less than 14 days’ written notice to Customer of additions and changes to System Management Regulations.
8.2. In the event that Customer is in breach of any of its obligations under this Agreement, then:-
8.2.1 Provider cannot be held responsible should the Service fail to comply with the Service Levels as a result (directly or indirectly) of such Customer breach; and
8.2.2 Provider shall be entitled to charge Customer for staff time engaged on rectifying any resulting problems at Provider’s standard charge rates for the time being.
8.3. In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Provider will have the right to suspend immediately any related services if deemed reasonably necessary by Provider to protect the proper interests of Provider or its other customers. If practicable and depending on the nature of the breach, Provider may (in its absolute discretion) give Customer an opportunity to cure. In such case once Customer has cured the breach, Provider will promptly restore the Service(s).
9.1. NEITHER PROVIDER SHALL BE LIABLE FOR ANY LOSS OR DAMAGE OF WHATSOEVER NATURE SUFFERED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH ANY ACT, OMISSION, MISREPRESENTATION OR ERROR MADE BY OR ON BEHALF OF CUSTOMER OR ARISING FROM ANY CAUSE BEYOND PROVIDER’S REASONABLE CONTROL.
9.2. PROVIDER SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OR PROFIT, REVENUE, DATA OR GOODWILL ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR ANY MAINTENANCE OR OTHER AGREEMENT ENTERED INTO BETWEEN CUSTOMER AND PROVIDER OR FOR ANY LIABILITY OF CUSTOMER TO ANY THIRD PARTY OR OTHERWISE WHETHER OR NOT SUCH LOSS HAS BEEN DISCUSSED BY THE PARTIES PRE-CONTRACT OR FOR ANY ACCOUNT FOR PROFIT, COSTS OR EXPENSES ARISING FROM SUCH DAMAGE OR LOSS.
9.2.1 SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
9.2.2 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS END USER AGREEMENT.
9.3. Customer accepts that Provider is not in any way liable for any virus or other contaminants which enter Customer’s email system or computer network via use of the Service.
9.4. None of the Clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of Provider or its appointed agents.
9.5. No matter how many claims are made and whatever the basis of such claims, Provider’s maximum aggregate liability to Customer under or in connection with this Agreement or any other agreement between the parties or any software related to this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clauses 8.1-8.4 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to twice the Service Fees paid or payable for the 12 month period preceding such claim.
9.6. Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Service Fees have been calculated on the basis of the limitations and exclusions in this Clause 9 and that Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 9.
10.1. The parties hereby agree that Provider owns all Intellectual Property Rights and that Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Hosted Application and in all materials created or originated by Provider in connection with or related to the provision of the Service hereunder.
10.2. Provider warrants that it has all necessary right, title or interest to enable Customer to use the Hosted Application in accordance with this Agreement.
11.1. For the purposes of this Clause, the following events shall be deemed “acts of default”:
11.1.1 if Customer fails to pay any money due to Provider pursuant hereto within 15 days of the due date therefore;
11.1.2 if a party commits any material breach of any term of this Agreement (other than one falling under Clause 11.1.3 below) and which, in the case of a breach capable of being remedied, shall not have been remedied within 14 days of a written request by the other party to remedy the same
11.1.3 In the event a party to this Agreement files a petition in bankruptcy, is declared bankrupt, becomes insolvent, or makes an assignment for the benefit of creditors, the other party may terminate this Agreement by providing written notice of such termination; provided, however, with respect to involuntary proceedings, that such proceedings are not dismissed within ninety (90) days.
11.2. If Customer commits an act of default then Provider may:
11.2.1 forthwith suspend the provision of the Service hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement; or
11.2.2 terminate this Agreement by notice in writing forthwith.
11.3. If Provider commits an act of default then Customer may terminate this Agreement by notice in writing forthwith.
11.4. Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
12.1. Subject to Clause 12.2, each of Provider and Customer hereby undertakes with the other to keep confidential all Confidential Information.
12.2. Provider undertakes not without Customer’s written consent to disclose Customer Data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision of the Service and who have, and to the extent that they have, a need to know the same.
12.3. The provisions of Clauses 12.1-2 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
12.3.1 already in the other’s possession without duty of confidentiality on the date of its disclosure;
12.3.2 in the public domain other than as a result of a breach of this Clause; or
12.3.3 to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the party required to make such disclosure shall use reasonable endeavours to notify the other party of such requirement prior to making the disclosure.
12.4. Each of Provider and Customer hereby undertakes to the other to make all relevant employees agents and subcontractors aware of the confidentiality of the information and the provisions of this Clause 12.
12.5. For the avoidance of doubt, all Customer Data shall remain at all times the exclusive property of Customer and may only be used by Provider in order to fulfil its obligations pursuant hereto.
13.1. Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its subcontractors) including but not limited to act of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
13.2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
13.3. If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre-existing rights or obligations of either party.
14.1. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
15.1. Any notice to be given hereunder shall be sent by email to the address of the other party set out in this Agreement (or such other address as may have been subsequently notified) and any such communication shall be deemed to have been served at 6pm Central Time Zone for U.S. residents and at 6pm (London time) for residents in all other countries on the next working day in the jurisdiction where the recipient is located.
15.2. NOTICES TO EMAIL Provider firstname.lastname@example.org Customer As notified on sign-up to the Service
16.1. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
17.1. Subject to Clause 17.2, this written Agreement (including the Schedules) and any other expressly incorporated document constitute the entire agreement between the parties hereto relating to the subject matter hereof. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this Clause 17.1 shall relieve either party of liability for fraudulent mis-representations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court, arbitrator or expert appointed under Clause 20 may allow reliance on the same as being fair and reasonable.
17.2. No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
18.1. Customer shall not be entitled to assign, transfer, license and/or sublicense this Agreement nor all or any of its rights and obligations hereunder.
19.1. Provider shall be entitled to sub contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Service itself.
ZM may provide you with the ability to upload, contribute, or transmit user-generated content to or through the Software, including, but not limited to, text, photographs, images, videos, and audio files (collectively “User-Generated Content”). You warrant that your User-Generated Content will not (i) violate any law, statute, regulation, or ordinance, whether local, state, provincial, national, or international, (ii) violate any term or condition of this Agreement, or (iii) violate the rights of third parties, including intellectual property rights and any other personal or proprietary rights.
ZM may provide Customer with the ability to register a user account (“User Account”), which will provide access to the Software. Your User Account is protected by a username and password. You recognize that You are solely responsible for maintaining the security and confidentiality of Your username and password and that You are responsible for any unauthorized access to Your User Account. In the event Your User Account is accessed without Your authorization, You agree to notify ZM immediately. ZM reserves the right to restrict access to, suspend, disable, or delete Your User Account at any time, in its sole discretion, and without prior warning.
You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with Your use of the Software.