These Terms of Service (“Terms of Service”) are part of the “Agreement” between Velocita, Inc. d/b/a Zinrelo (“Zinrelo,” “we,” “us,” or “our”) and the company that executes a Zinrelo Client Agreement for Services (“Client” “you”, or “your”) that incorporates these Terms of Service.
You hereby acknowledge and agree that you have read, understood, and accept all of these Terms of Service and the terms and conditions in the following documents: (i) the Zinrelo Client Agreement, (ii) our Privacy Policy, available at https://www.zinrelo.com/privacy-policy (“Privacy Policy”), and (iii) additionally, if Client is located in the European Economic Area (“EEA”) or United Kingdom or Switzerland, the terms of our GDPR Data Processing Addendum (“DPA”), available at https://zinrelo.com/dpa, shall also apply (collectively, the “Agreement”).
As referenced below, any dispute between you and Zinrelo is subject to a class action waiver and must be resolved by individual binding arbitration. Please read the arbitration provision in these Terms of Service as it affects your rights under the Agreement.
DEFINITIONS
Capitalized terms used in these Terms of Service, and not otherwise defined in the Agreement, shall have the following meanings:
- “Account” means the Zinrelo account, which includes a username and password, used by Client to access and use the Service.
- “Applicable Law” means all statutes, codes, rules, regulations, by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the Person referred to in the context in which such word is used.
- “Client Data” means non-anonymized electronic data pertaining to Client, the Users, and the End-Customers that is collected and/or processed using the Service, including personal information, login credentials, and other information that relates to such parties’ use of the Service.
- “Content” means any and all content, data, and other materials including, without limitation, images, trademarks, HTML e-mail codes, live streams, documentation, reports, materials, files, text, logos, artwork, graphics, pictures, advertisements, works, works of authorship or any other intellectual property contained in any such materials.
- “Documentation” means Zinrelo’s general release version of user documentation for the Services, such as user manuals, online help files, and FAQs, including those that appear on the Zinrelo Platform and the Service Materials.
- “End-Customer” means any customer that uses or views the Client Content, including your customers.
- “End-Customer Data” means the electronic data concerning the characteristics and activities of customers (including personal information of such customers) collected and analyzed by the Service relating to such customers’ use or viewing of the Client Content. End-Customer Data shall be included in Client’s Content and Data.
- “Person” means a natural person or any legal, commercial, or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any person acting in a representative capacity.
- “Users” means Client’s employees, representatives, consultants, contractors, or agents who are authorized to use the Services for Client’s benefit and have unique user identifications and passwords for the Services.
- “Zinrelo Client Agreement” means the order form executed by the Client that specifies the Services subscribed to by the Client, the fees for such Services, and other pertinent terms and conditions governing the provision of Services by Zinrelo to the Client under the Agreement.
- “Zinrelo Platform” means the code, technology, and servers used in the operation and provision of the Services and includes the Documentation and Software.
Zinrelo’s Service
NON-EXCLUSIVE LICENSE
Subject to your compliance with the Agreement and your payment of any and all applicable fees, Zinrelo grants you a non-transferable, non-exclusive, worldwide right to access and use the Services described in the Agreement.
NOT PROFESSIONAL ADVICE
Zinrelo will provide online tools and materials to assist you with the preparation, execution, and storage of your own loyalty rewards programs and related information, and we may (if provided for in the Agreement) provide advice regarding the design, strategy, and use of such programs and information. However, the documents and other materials available through the Services and any advice provided (collectively, the “Service Materials”) are for informational purposes only; and all final decisions about the design, strategy, and use of any program will be yours. You understand that our providing of the Services to you does not constitute any guarantee of a particular outcome or otherwise make us responsible in any way for the success or failure of any program you undertake in connection with the Services.
PASSWORDS AND SECURITY
In order to use the Services, you will have to register and create an Account with us and provide one or more names, email addresses, login usernames, and passwords (together, “ID”). You are responsible for maintaining the confidentiality of your IDs (especially the login usernames and passwords). You agree not to use your IDs, usernames, or passwords of any third party or disclose your IDs, usernames, or passwords to any third party. You are responsible for any and all activity that occurs on your Account. You must ensure that all access, use, and receipt by your Users is subject to and in compliance with the Agreement. If you suspect any unauthorized use of your Account, you must notify us immediately. You agree to provide us with correct and complete Account information at all times and inform us of any changes to the information you have provided. We will, in accordance with our Privacy Policy, keep your usernames and passwords confidential. You are responsible for managing your authorized users and revoking access for users who are no longer authorized, e.g., employees leaving the company.
USAGE LIMITS
Services that we provide may be subject to usage limits and restrictions, which may be specified in the Agreement including, without limitation, the locations at or through which you can use the Services, the number of allowable members, usage volumes, etc. You agree to use the Services within the usage limits set out in the Agreement. It is your responsibility to ensure that you do not exceed those limits and restrictions. Extra charges in the form of overages will apply if you exceed any usage limits.
NECESSARY EQUIPMENT TO USE THE SERVICES
You are responsible for obtaining and maintaining all telecommunications, broadband, computer hardware, software, equipment, and services needed to connect to, access, and use the Services.
PROHIBITED AND UNAUTHORIZED USE
You will not use the Services in any way that violates or in any manner that is unlawful or prohibited by the Agreement. You will not (i) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to uncover or discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any Software, documentation, or data related to the Services; (ii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by us); (iii) or remove any proprietary notices or labels.
You may not use the Services if you are legally prohibited from receiving or using the Services under the laws of the country in which you are resident or from which you access or use the Services.
You may not use the Services in a way that would violate local or industry-specific regulations (for example, the Children’s Online Privacy Protection Rule consistent with the requirements of the Children’s Online Privacy Protection Act (COPPA), the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), the Federal Information Security Management Act (FISMA), etc.)
Fees and Payment
FEES
You agree to pay all fees set out in the Agreement which may include ‘One-time Service Fees’, ‘Limits & Usage Fees’ or ‘Overage Fees’, or ‘Recurring Service Fees’. The fees will remain fixed, subject to any annual adjustments described below, unless (i) you exceed your applicable limits detailed in the Zinrelo Client Agreement, (ii) you upgrade products or base packages, (iii) you subscribe to additional features, products or Services, or (iv) otherwise agreed to in the Zinrelo Client Agreement. All fees are non-cancellable and non-refundable and are based on the Services and products purchased and not actual usage. Extra charges in the form of overages will apply if you exceed any usage limits. Unless otherwise agreed between you and us, charges may be paid by ACH Transfer, wire transfer, check or credit card (subject to an additional 3% service fee).
FEE ADJUSTMENTS
Pricing may increase by up to 10% on an annual basis, effective on each anniversary date of your service start date as determined in the Zinrelo Client Agreement. Any discounts stated in the Zinrelo Client Agreement shall apply for the initial contract term only.
PAYMENT TERMS
Fees are payable according to the terms described in the Agreement. All fees shall be due upon receipt of such an invoice, unless as otherwise agreed to in the Zinrelo Client Agreement. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Zinrelo’s income), even if such amounts are not listed in the Zinrelo Client Agreement. Client shall pay all fees in U.S. Dollars or in such other currency as agreed to by the parties in the Zinrelo Client Agreement without set-off or deduction.
OVERDUE FEES
Unpaid invoices that are not the subject of a written good faith dispute are subject to interest at a rate of 5.00% per month after the due date on the outstanding balance, or the legal maximum interest rate, whichever is lower. In addition to accruing interest, you will be liable for all reasonable costs incurred in collecting the debt, including but not limited to attorney’s fees. Furthermore, Zinrelo reserves the right to pursue any other legal remedies available in the event an invoice remains unpaid for a period of 60 days.
Client Cooperation and Assistance
CLIENT’S OBLIGATION
As a condition to Zinrelo providing the Services as outlined in the Agreement, you agree to provide all necessary cooperation and assistance as may be reasonably required by Zinrelo to facilitate the effective provision of the Services. This cooperation and assistance include, but are not limited to, providing access to relevant Your data, materials, infrastructure, and personnel, as well as timely decision-making and approvals by You.
FAILURE TO PROVIDE ASSISTANCE
You acknowledge and agree that the failure to provide the necessary cooperation and assistance as required under the Agreement may adversely affect Our ability to provide the Services. Such failure on Your part shall not relieve You of your obligation to pay any fees or charges under the Agreement. Moreover, your failure to provide required assistance and cooperation shall be considered a material breach of the Agreement.
NO REFUNDS FOR THE FAILURE TO COOPERATE
In the event of Your failure to provide the necessary cooperation and assistance required for Us to deliver the Services as per the terms of the Agreement, you understand and agree that no refund of any fees or other charges paid under the Agreement shall be issued.
Your obligations under this Section are critical to Our performance under the Agreement and to the provision of the Services.
Term and Termination; Suspension
TERM
The Contract Term, Service Start Date, termination, and renewal terms will be governed by the Zinrelo Client Agreement and will automatically renew for the shorter of the same duration as your prior term or one year.
NOTICE OF NON-RENEWAL
Non-renewal or cancellation notices must be sent explicitly in writing by email to [email protected]. To prevent renewal of [your subscription], you or we must give written notice of non-renewal at least 90 days prior to the expiration of the then current term.
EARLY CANCELLATION
You may choose to cancel the Services early at your convenience; provided that, Zinrelo will not provide any refunds of prepaid fees or unused Services, and you will promptly pay all unpaid fees due through the end of your then-current term. See the ‘Notice of Non-Renewal’ section for information on how to cancel the Services.
TERMINATION FOR CAUSE
Either party may terminate the Agreement effective immediately upon written notice only under one of the following two conditions:
(i) if the other party materially breaches a material obligation under the Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors.
If you terminate the Agreement for cause, we will refund any prepaid but unused fees covering use of the Services after termination.
Zinrelo may also terminate the Agreement or suspend access to the Services for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
EFFECT OF TERMINATION
Upon expiration or other termination of the Service for any reason: (i) your right to access and use the Service shall terminate; (ii) all fees set out in the Zinrelo Client Agreement shall be immediately due and payable (including all related fees and expenses); (iii) all licenses granted hereunder shall concurrently terminate; and (iv) each party shall return promptly to the other party all Confidential Information of the other party that it has obtained hereunder, together with all copies thereof.
Additionally, within 30 days after the termination of the Agreement, Client is responsible for removing all Zinrelo plugins and Zinrelo API call requests from their website, servers, and other software. When the 30-day period after termination is over, if any API calls are made to the Zinrelo server, Client will be responsible for paying the charges for such API calls at $0.001 per API call.
SUSPENSION
We may suspend your access to any or all Services without notice for:
- use of the Services in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of the Agreement;
- non-payment of any amount due that has not been cured within ten (10) days after such notice of non-payment. We will not suspend the Services while you are disputing the applicable fees reasonably and in good faith and are cooperating diligently to resolve the dispute;
- the billing or contact information provided by you is false or fraudulent;
- we’re required to do so to comply with a legal requirement or a court order; or
- your conduct causes harm or liability to Zinrelo or another third party (for example, by hacking, phishing, harassing, spamming, misleading others, or scraping content that doesn’t belong to you).
Nothing in this Section limits our right to terminate for cause as outlined above. Any suspension of the Services by us under this Section shall not relieve you of your payment obligations under the Agreement. We will not be liable to you nor to any third party for any suspension of the Services. If the Services are suspended, we may charge a re-activation fee to reinstate the Services. Both parties commit to collaboratively engage to promptly address and resolve any and all suspensions in accordance with the terms of the Agreement.
RETURN OF CLIENT DATA
After the Agreement is terminated, you will be entitled to extract Client Content stored using the Services, Client Data, and Non-Anonymized End-customer Data for a period of 72 hours following termination (the “Extraction Grace Period”) in a format determined by Zinrelo. Following the Extraction Grace Period, Zinrelo shall have the right to delete all of the Client Content, Client Data and Non-Anonymized End-customer Data at any time and cancel your Account with us. You acknowledge and agree that archived versions of the Services may include archived copies of Client Content, Client Data and Non-Anonymized End-customer Data which may be retained by us for an archive cycle or as otherwise required by internal processes.
SURVIVAL
Upon termination of the Agreement for any reason, Client shall pay all amounts owed hereunder. The following sections: Fees and Payment – Overdue Charges, Content, and License – Content, Content, and License – Restrictions, Disclaimer of Warranties, Indemnification, Limitation of Liability, Confidential Information, and General Provisions of these Terms of Service, together with any other provision required for their construction or enforcement, shall survive termination of the Agreement for any reason.
Zinrelo Content and License
CONTENT
THE SERVICES CONTAINS CONTENT OWNED BY ZINRELO, ITS SUPPLIERS OR LICENSORS (“CONTENT”). “CONTENT” MEANS TEXT, IMAGES, VIDEOS OR OTHER CONTENT PROVIDED BY ZINRELO TO DELIVER ITS SERVICES. ZINRELO, ITS SUPPLIERS AND LICENSORS OWN AND RETAIN ALL RIGHTS, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE SERVICES AND THE CONTENT. THE SERVICES AND CONTENT ARE PROTECTED BY COPYRIGHT, TRADEMARK, PATENT, TRADE SECRET AND OTHER LAWS.
OWNERSHIP AND LICENSE
The Services are licensed and not sold to you. All rights not expressly granted to you in the Agreement are reserved and retained by us. You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, use or sell any Content (other than End-Customer Content) appearing on or through the Services. You must not modify, build upon or block any portion or functionality of the Services. We grant you a limited, revocable, non-sub-licensable license to reproduce and display the Content (excluding software code) in connection with using the Services during the Term. No Service, nor any part of any Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not misuse the Services. You may use the Services only as permitted by Applicable Law. The licenses granted by us terminate if you do not comply with the Agreement.
DOCUMENTATION
Zinrelo hereby grants to Client a non-exclusive, non-transferable, worldwide right during the Contract Term to access and use the user documentation relating to the operation and use of the Services that are provided by Zinrelo to Client under the Agreement, as updated by Zinrelo from time to time (“Documentation”). Zinrelo, its suppliers and licensors own and retain all rights in the Documentation. The Documentation is protected by copyright, trademark, patent, trade secret and other Applicable Law.
SOFTWARE
We may provide software products (“Software”) for use in connection with the Service. We grant you a limited, personal, worldwide, non-sublicensable, non-transferable, non-exclusive license to install and execute the Software on machines operated by or for you solely to permit you to use the Services during the Contract Term. Any Software is licensed and not sold. Software may include code that is licensed under third party license agreements, including open source, made available or provided with the Software, as applicable. Zinrelo, its suppliers and licensors own and retain all rights in the Software. The Software is protected by copyright, trademark, patent, trade secret and other Applicable Law.
RESTRICTIONS
Unless approved explicitly by Zinrelo, Client shall not (and shall not permit others to): (i) license, sub-license, sell, transfer, distribute or share the Services, Software or Documentation or make any of them available for access by third parties; (ii) create derivative works based on or otherwise modify the Services, Software or Documentation; (iii) disassemble, reverse engineer or decompile the Services or Software or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Software, documentation or data related to or provided with the Services; (iv) access the Service, Software or Documentation in order to develop a competing product or service; (v) use the Service, Software or Documentation to provide a service for others; (vi) use the Zinrelo Platform to operate more or different type of applications than permitted under the Agreement; (vii) remove or modify a copyright or other proprietary rights notice on or in the Services, Software or Documentation; (viii) use a computer or computer network to cause physical injury to the property of another; (ix) violate any Applicable Law or regulation; (x) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services; (xi) include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Services; (xii) cause a computer to malfunction, regardless of how long the malfunction persists; or (xiii) alter, disable, or erase any computer data, computer programs or computer software without authorization.
MODIFICATIONS
We are entitled to modify or update the Services from time to time in order to adapt it technically, to change menu guidance or layouts, or to expand or limit functionality. If any such changes will result in reduced functionality for any feature currently in use by the Client, Zinrelo will inform the Client at least thirty (30) days in advance of such change.
Client Content and License; End-Customer Data
CLIENT CONTENT
As an Account holder, you may submit and publish Client Content on the Zinrelo Platform. Client Content is the Content that you or your End-Customers upload to the Service. You are exclusively responsible for all Client Content and the consequences of submitting and publishing your Content on the Service. Please carefully choose the Content that you or your End-Customers post. We do not verify the accuracy, quality, content, or legality of Client Content. We may, but are under no obligation to, monitor, view, analyze or edit any Client Content. We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with Applicable Law. Zinrelo will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with Client Content.
OWNERSHIP AND LICENSE
As between you and us, you retain all rights of ownership in the Client Content. By uploading, displaying, or publishing your Content to the Service, you grant us a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable, and transferable license to use, adapt, reproduce, modify, distribute, and display your Content only in connection with the Services. This license is necessary for Zinrelo to perform the Services. For example, without the right to modify Client Content, we would not be able to format Content to satisfy technical requirements for online display. This license allows us to: (i) deliver Client Content in accordance with the preferences set by Client utilizing the Zinrelo Platform; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of Client Content; (iii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivate works of, promote, copy, store, and/or reproduce (in any form) Client Content on or through the Service; and (iv) utilize Client Content to test Zinrelo’s internal technologies and processes. You also grant us and allow us to grant each End-Customer or other user of the Services, a non-exclusive license to view Client Content through the Service. We reserve the right to retain (but not display, distribute or publish) server copies of Client Content that have been removed or deleted from the Services.
END-CUSTOMER DATA
You retain all rights to the End-Customer Data in relation to the performance of the Services. Zinrelo understands that it is a custodian of the End-User Data and not an owner of such data You may request deletion of such data at any time by emailing [email protected].
REPRESENTATIONS AND WARRANTIES
BY ZINRELO
Zinrelo represents and warrants that (i) It has all necessary and legal rights, powers, and authority to accept and be bound by the Agreement; and (ii) It is in compliance with all applicable advertising laws, rules, and regulations including without limitation any applicable data protection or privacy laws.
BY CLIENT
You represent and warrant that: (i) You have all necessary and legal rights, powers, and authority to accept and be bound by the Agreement; (ii) you own or have the necessary licenses, rights, consents, and permissions to use and publish the Content you submit; (iii) the uploading of your Content on the Service and the licenses granted to Zinrelo under the Agreement do not and will not violate the rights of any Person; and (iv) no payments of any kind shall be due by Zinrelo to any organization for the use or distribution of Client Content.
PROHIBITED CONTENT
Some Content is prohibited on the Service. You agree that you will not upload or use in connection with the Service any prohibited Content including, without limitation, Content that: (i) is pornographic, sexually explicit or offensive or contains a link to an adult website; (ii) contains graphic or gratuitous violence; (iii) conveys a message of hate against any individual or group; (iv) encourages or glorifies drug use; (v) is predatory in nature, or is submitted for the purpose of harassment or bullying; (vi) is highly repetitive and/or unwanted including “Spam” messages; (vii) promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual; (viii) constitutes or promotes information that Client knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (ix) furthers or promotes criminal activity or provides instructional information about illegal activities; or (x) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any Person. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending Content without prior notice, terminating or suspending Client’s Account or access to the Service, and/or reporting such Content or activities to law enforcement authorities.
CONTENT PRESERVATION AND DISCLOSURE
We may preserve and store Client Content and/or disclose Client Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes; (ii) comply with the Agreement; (iii) respond to claims that any Client Content violates the rights of any Person; or (iv) protect the rights, property, or personal safety of Zinrelo, end-customers and/or the public.
Privacy, Security, and Service Levels
PRIVACY POLICY
By signing the Client Agreement you accept these Terms of Service and you expressly consent to the collection, use, and disclosure of your personal information in accordance with the terms outlined in our Privacy Policy . Zinrelo reserves the right to update or modify the Privacy Policy at any time. Any changes will be effective immediately upon posting the updated Privacy Policy on our website. If you have any questions or concerns regarding our Privacy Policy, please contact us .
Additionally, you understand that through your use of the Services, you consent to the collection and use of Client Content, including the transfer of this information to the United States for storage, processing, and use by us. Your Content shall be hosted and persistently stored by Zinrelo or its third-party service providers in the United States.
As part of providing, you with the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Account.
SECURITY
The Services are provided by us from data center facilities to which Users have remote access via the internet under the Agreement. We have taken maximum steps to secure data, networks, and other technologies. Zinrelo is SOC 2 Type 1 Compliant. This means that Zinrelo is in compliance with the requirements relevant to Security, Processing Integrity, Availability, Confidentiality, and Privacy. We implement security procedures to help protect Client Content from security attacks. However, we cannot guarantee that our security procedures will be completely error-free, if you become aware of any security breach in the Services, you agree to promptly notify us. We agree to notify you in the event of a detected security breach.
SERVICE LEVELS
We use commercially reasonable efforts to ensure that availability of the Services will be uninterrupted and that transmissions will be error-free 99.95% of the time, except for scheduled maintenance. When your access to Services is occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services, we will provide a minimum 7-day notice of such suspension of service. We will attempt to limit the frequency and duration of any such suspension or restriction. Though Zinrelo has a staging environment where detailed testing of new features is performed, occasionally unplanned outages may happen. Due to the nature of technical outages, we cannot guarantee notice prior to these unplanned outages. We will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.
SUPPORT
For Enterprise Plans, Zinrelo shall assign a dedicated Account Manager, available to the Client via phone and email for questions and best practice recommendations. The Account Manager, or a backup with similar experience shall be available to the Client between the hours of 9:00 a.m. and 5:00 p.m. US Eastern Time (ET) during regular business days, Monday through Friday, not including national holidays. Such support may be provided via electronic mail, telephone service, public bulletin boards, and/or other similar methods deemed appropriate by the Client.
For Self-Service Plans, the Client may access support through the Zinrelo Help portal or by emailing [email protected].
Disclaimer of Warranties
ALL SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER ZINRELO NOR ITS SUPPLIERS OR REPRESENTATIVES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ZINRELO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE SERVICES WILL MEET CLIENT’S OR ANY END-CUSTOMER’S REQUIREMENT OR EXPECTATION, THAT WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE. ZINRELO DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. ZINRELO WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-COMPANY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM THE CLIENT IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE, AND DISCLOSURE OF DATA AUTHORIZED BY THIS AGREEMENT OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON THE SERVICES. CLIENT ACKNOWLEDGES THAT ZINRELO IS NOT A BUSINESS ASSOCIATE OR SUBCONTRACTOR. The disclaimers in this section shall apply to the maximum extent not prohibited by Applicable Law, notwithstanding anything to the contrary herein. Client may have other statutory rights. However, any statutorily required warranties under Applicable Law, if any, shall be limited to the shortest period and maximum extent permitted by Applicable Law.
Indemnification
BY ZINRELO
We will indemnify, defend and hold the Client harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Client to the extent based on an allegation that Zinrelo’s technology used to provide the Services to the Client infringes or misappropriates any copyright, trade secret, patent or trademark right of a third party that is issued or registered in the United States. In no event will we have any obligations or liability under this section arising in whole or in part from any content, information, or data provided by the Client, End-customer, or other third parties. Zinrelo shall not be required to indemnify Client in the event of- (a) modification of the Services by Client, its employees, or contractors in conflict with Client’s obligations or as a result of any prohibited activity as set forth herein; (b) use of the Services in a manner inconsistent with the Documentation; (c) use of the Services in combination with any other application, product, or service not provided by Zinrelo if such claim would not have occurred without such combination; or (d) use of the Services in a manner not otherwise contemplated by the Agreement.
INDEMNIFICATION BY CLIENT
Client shall indemnify, defend and hold harmless Zinrelo from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Zinrelo or its affiliates regarding (i) Client Content, Client Data or End-customer Data; (ii) failure by the Client to obtain any of the necessary consents required by End-customers under the Agreement; (iii) Client’s use of the Services in violation of the Agreement (including use of Third-Party Products not approved by Zinrelo) or Applicable Law; (vi) violations of Client’s obligations of privacy to any Person.
POSSIBLE INFRINGEMENT
If we believe the Services infringe or may be alleged to infringe a third party’s intellectual property rights, then we may: (i) obtain the right for you (at our expense) to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If we do not believe that the options described in this section are commercially reasonable, then we may suspend or terminate Client’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
PROCESS
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join the defense with its own counsel at its expense.
EXCLUSIVE REMEDY
The indemnities above are Zinrelo’s and Client’s only remedy under the Agreement for third-party infringement claims and actions.
Limitations of Liability and Damages
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL ZINRELO OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL ZINRELO’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO ZINRELO FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION EXCLUDES (i) EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S GROSS NEGLIGENCE OR (ii) FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ AND ‘CONFIDENTIAL INFORMATION’ SECTIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY COMPANY TECHNOLOGY, OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (together “Confidential Information” of the Disclosing Party). Such information includes, without limitation, information relating to pricing of Services, Client Data, and your ID.
The Receiving Party agrees: (i) to take reasonable precautions, using the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind, to protect such Confidential Information; (ii) not to use (except as permitted in the Agreement) or divulge to any third person such Confidential Information; and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can demonstrate that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (v) is required by law.
The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.
General Provisions
COMPLIANCE WITH LAWS
We will comply with all Applicable Laws (where applicable) in our provision of the Services and our processing of Client or End-Customer Data. We reserve the right at all times to disclose any information necessary to satisfy any law, regulation, legal process or governmental request.
You will comply with all Applicable Laws in your use of the Services, including any applicable export laws. You will not directly or indirectly export, re-export, or transfer the Service to prohibited countries or individuals or permit use of the Service by prohibited countries or individuals.
ASSIGNMENT
You may not assign (whether by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law) the Agreement, nor any of the rights or obligations arising thereof, in whole or in part, to any third party without our prior written consent. We may assign the Agreement to any Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
NOTICES
Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by an internationally recognized overnight courier (signature requested); (iii) the third business day after mailing if sent by certified USPS mail with return request; or (iv) the first business day after sending by email to [email protected]. Notices shall be sent to the parties as set forth on the signature page of the Zinrelo Client Agreement or as otherwise agreed to by the parties in writing. Notwithstanding the foregoing, Zinrelo may give electronic notices to you by email to your e-mail address(es) or by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
PUBLICITY
You permit us to list you as a client and use your standard logo for our promotional and marketing use during the Contract Term.
FORCE MAJEURE
Except for your obligation to pay fees for the Services, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include, without limitation, accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion of it. Each party will use reasonable efforts to mitigate the effect of a force majeure event affecting such party and will provide prompt written notice of any actual or suspected force majeure event.
RELATIONSHIP OF THE PARTIES
The parties are independent contractors. Nothing in the Agreement shall be construed to create a partnership, joint venture, or agency relationship.
GOVERNING LAW; VENUE
The Agreement shall be governed by the laws of the State of Texas. The jurisdiction and venue for all disputes hereunder shall be the state and federal courts in Bexar County, Texas.
DISPUTES
- Mediation. Except for a request for temporary injunctive or other equitable relief, each party agrees that it shall not begin a legal action in connection with the Agreement unless it has first given the other party written notice of the dispute and attempted to resolve the dispute through good faith negotiation. At the request of either party, the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator in Bexar County, Texas. The mediator will be chosen by mutual agreement of the parties within twenty-one (21) days after written notice by either party demanding mediation. Neither party shall unreasonably withhold or delay consent to the selection of a mediator. The parties will share equally the costs of the mediation, exclusive of any fees paid by a party to its internal or external legal advisors, accountants and experts in connection with the dispute. The use of any mediation procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party. If the dispute is not resolved through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation, the parties are free to file an arbitration action.
- Arbitration. If the mediation process does not resolve a dispute, the parties agree that they shall submit the dispute to binding arbitration in accordance with the commercial rules of the American Arbitration Association, without any right of appeal. The arbitration shall be held in Bexar County, Texas unless the parties agree to a different location. Zinrelo and Client agree that any dispute resolution process shall be conducted on an individual basis and may not be brought as a class, consolidated, or representative action. In the event there is proceeding in a court, each party irrevocably waives any right to a jury trial to the extent permitted by law.
- Injunctive, Equitable Relief. Notwithstanding the requirement for arbitration stated above, either party may bring an action in a court to enjoin intellectual property infringement or breach of confidentiality.
ACTIONS PERMITTED
Except for actions for nonpayment or breach of a confidentiality, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one (1) year after the cause of action should have been reasonably discovered.
AUTHORITY
If an individual submits an Client Agreement, the individual represents that: (i) if the individual submits the Client Agreement on his or her own behalf (including as a sole proprietor), the individual is old enough to enter into contracts and otherwise has the legal capacity to enter into contracts under Applicable Law; or (ii) if the individual submits the Client Agreement on behalf of a company or other legal entity, the individual has the legal power and authority to bind that entity to the Client Agreement and these Terms of Service.
CONTRACT FOR SERVICES
The Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to the Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern the Agreement or the rights and obligations of the parties under the Agreement.
ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between Client and Zinrelo respect to the subject matter herein and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, including previous non-disclosure agreements between the parties. Zinrelo may update these Terms of Service from time to time. We will provide prior written notice of any material updates at least thirty (30) days in advance of the effective date; provided however, Zinrelo may not be able to provide at least thirty (30) days prior written notice of material updates to these Terms of Service that result from changes in law, regulation, or requirements, directly or indirectly, from telecommunications providers. Except as otherwise specified by Zinrelo, updates will be effective upon the effective date indicated. The updated version of these Terms of Service will supersede all prior versions. Following such notice, Client’s continued use of the Services and Platform on or after the effective date of the updated Agreement constitutes Client’s acceptance of such updated Agreement. If you do not agree to the updated version of the Agreement, you must stop using the Services and Platform immediately.
ORDER OF PRECEDENCE
In any event of a conflict or inconsistency between the terms herein and the terms of the Zinrelo Client Agreement, these Terms of Service shall prevail. Any additional or conflicting terms contained in quotes or other business forms issued by Client with respect to the subject matter hereof are hereby expressly rejected and shall have no force or effect on the terms of these Terms of Service or any applicable Zinrelo Client Agreement.
SEVERABILITY
In the event one or more of the terms of these Terms of Service are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret these Terms of Service as if such terms had not been included or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.