Terms of Service
Zight Legal Notices
ZIGHT, INC. MASTER SERVICES AGREEMENT
Effective Date: August 7, 2023
THIS AGREEMENT GOVERNS YOUR ORGANIZATION’S ACQUISITION AND USE OF ZIGHT, INC. (HEREAFTER “ZIGHT”) SOFTWARE SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Your use of the Services constitutes your agreement to these terms. It is effective between You and Us as of the date you sign an Order Form or first use the Services, whichever is earlier.
For information on data protection, processing and other security details, please visit our Trust Center. Unless otherwise specified, terms defined in this Agreement shall have the same meaning when used in any other document made part of this Agreement.
- DEFINITIONS
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Agreement” means this Master Services Agreement.
1.3. “Beta Services” means Our services that are not generally available to customers but where if Customer chooses to participate Customer makes an affirmative choice in which to select participation.
1.4 “Customer” means You and the organization for which you are entering this Agreement.
1.5. “Content” means data uploaded by You to the Zight platform.
1.6. “Documentation” means our online user help, guides, documentation, and training materials, as updated from time to time, accessible via our website or after login to the applicable Service.
1.7. “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.8. “Non-Zight Applications” means a Web-based or offline software application that is provided by a third party and interoperates with a Service.
1.9. “Service Order” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into a Service Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. We may choose to issue an invoice in lieu of executing a Service Order in which case Our invoice will constitute the Service Order.
1.10. “Purchased Services” means Services that You or Your Affiliate purchase under a Service Order, as distinguished from those provided pursuant to a free trial.
1.11. “Services” means the products and services that are ordered by You under a free trial or a Service Order and made available online by Us as described in the Documentation, at Zight’s websites, including zight.com, my.cl.ly, and cl.ly web sites. “Services” exclude Non-Zight Applications.
1.12.“Taxes” means any form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to this Agreement or any Zight Services, other than taxes based on the net income of Zight.
1.13.“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
1.14. “We,” “Us” or “Our“, and “Zight” means Zight, Inc, a Delaware corporation, located at 548 Market St. #37513, San Francisco, CA 94104.
1.15. “You” or “Your” means you if you are entering this agreement for yourself, or the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
1.16. “Your Data” means electronic data submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Non-Zight Applications.
- OUR RESPONSIBILITIES
2.1. Provision of Purchased Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Service Orders, (b) provide Our standard support for the Purchased Services to You at no additional charge, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 24 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by Force Majeure events.
2.2. Protection of Your Content. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Content by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
2.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
2.4. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” or under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage, including lost or inaccessible data or unavailability of Beta Services, arising out of or in connection with a Beta Service.
- USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Service Order: (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2. Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in Service Orders. Unless otherwise specified: (a) a quantity in a Service Order refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, We will invoice You for, and You will pay promptly, for additional quantities of the applicable Services in accordance with Section 5.2 (Invoicing and Payment).
3.3. Your Responsibilities. You will: (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Content and the means by which You acquired Your Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with the Documentation and applicable laws and government regulations, (e) comply with terms of service of Non-Zight Applications with which You use Services, (f) abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of Zight, including those related to data privacy, international communications and the transmission of technical or personal data, (g) not impersonate another User or provide false identity information to gain access to or use the Service.
3.4. Usage Restrictions. You will not: (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (j) access any Service in order to build a competitive product or service, (l) reverse engineer any Service (to the extent such restriction is permitted by law).
3.5. Removal of Customer Content and Non-Zight Applications. If We are required by a licensor to remove Customer Content, or receive information that Customer Content provided by You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Customer Content from Your systems. If You do not take required action in accordance with the above, We may disable the applicable Customer Content, Service and/or Non-Zight Application until the potential violation is resolved.
3.6. Your Content. For Zight public (free) accounts, all of the content you create will be available to anyone who has access to the internet (“Your Public Content”). Public account holders with specific licenses may be able to create Content that you do not wish to be accessible or viewable by other Zight users or the public (“Private User Content”), including the option to create unlisted/private content. Your Public Content can be viewed by other Zight users, in publicly available search engines and will be available for others to access and view online. You hereby do and shall grant to each Zight User and to the public, a worldwide, non-exclusive license to access, view, publicly perform, publicly display and communicate to the public Your Public Content. This license ends one year after you delete Your Public Content or your account is closed (either by You or by Us), except to the extent that the Your Public Content has been shared with others and they have not deleted it. You agree that for Services you purchase if you are making use of the Service to display or edit Content that you do not wish to be accessible or viewable by other Zight users or the public – or if you wish to display or edit your User Content. Content designated as Private User Content will not be available to the public. Rather, they will be available to you, and to those Zight users with whom you have chosen to share the User Content. You may invite one or more people (a “Viewer”) to view your content by sending them a “share” or “invite” link. You hereby do and shall grant to each Invited Viewer a worldwide, non-exclusive license to access, view, publicly perform, publicly display and communicate to the public your Private User Content.
3.7. Acceptable Use. You agree You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any and all data that you submit to the Service, and Zight shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your data or Content. You also agree: (a) not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without our express written permission, (b) We may, but have no obligation to, remove content and accounts containing content that we determine in Our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or this Agreement, (c) verbal, physical, written or other abuse (including threats of abuse or retribution) of any of our customers, employees, members, or officers will result in immediate account termination, (d) You understand that the technical processing and transmission of the service, including your content, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices, (e) You must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages, (f) You must not transmit any worms or viruses or any code of a destructive nature, (g) If Your bandwidth usage (also known as data transfer) exceeds reasonable amounts determined in Our sole discretion, in a single calendar day, we reserve the right to immediately disable Your account or throttle Your file hosting until You can reduce your bandwidth consumption. If throttling or cessation of service under this paragraph occurs Zight will notify you within a reasonable time period.
4. NON-ZIGHT PROVIDERS
4.1 Integration with Non-Zight Applications. The Services may contain features designed to interoperate with Non-Zight Applications. Zight makes no warranty or guarantee as to the interoperability of any Non-Zight Application with any Service and Your use of any Non-Zight application is wholly at Your own risk. To use such features, You may be required to obtain access to Non-Zight Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-Zight Applications. If the provider of a Non-Zight Application ceases to make the Non- Zight Application available for interoperation with the corresponding Service features on reasonable terms, or Zight chooses to remove interoperability with any Non-Zight Application We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. You will pay all fees specified in Service Orders. Except as otherwise specified herein or in a Service Order: (i) fees are based on Services purchased as identified on a Service Order and not Your actual usage of any products (meaning if you fail to use the Service the full amount of all fees are still due), (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased may be decreased during the relevant subscription term, however, You may lose some or all of Your Content if You downgrade to a free subscription. Our prices, including monthly subscription plan fees, are subject to change upon 30 days’ notice to you directly via email. Such notice may also be provided to You at any time by posting the changes to the Zight websites or the Service itself.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Service Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2(Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Service Order. If the Service Order specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Service Order. Unless otherwise stated in the Service Order, invoiced charges are due net 14 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. If You are added to a team account as a user or administrator, after sixty 60 days Your existing individual account balance will be credited pro-rata to the team account. During the 60 days Your individual subscription will remain active should you wish to leave the team account you may provide a personal email address to the support team and we will remove you from the team domain and revert to your individual subscription.
5.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Service Orders on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice by email that Your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending services to You.
5.5. Payment Disputes. We will not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute, however, any dispute outstanding more than sixty (60) days past the invoice date will begin to accrue Overdue Charges according to the terms of Section 5.3.
5.6. Taxes. The Fees set forth in any Service Order are exclusive of, and You agree you are liable for and will pay, all Taxes, including any value added tax and goods and services tax or any similar Tax imposed on or measured by this Agreement. If You are required to withhold or deduct any Taxes from the fees, then You agree to increase the amount payable to Zight by the amount of such Taxes so that Zight receives the full amount of all fees. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Zight and our licensors grant to You only those rights expressly granted in the Agreement with respect to the Zight Services. Zight and its licensors reserve all other rights in and to the Services (including all intellectual property rights). You agree Zight owns all right, title and interest, including all related intellectual property rights, in and to Our technology and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to Zight. You agree: (a) the Zight name, the company logo, and the product names associated with Zight are trademarks of Zight or third parties, and no right or license is granted to use them, (b) copying, redistribution, use or publication by You of any such matters or any part of Zight Service is strictly prohibited, (c) You do not acquire ownership rights to any content, document or other materials viewed through Zight, (d) the posting of information or materials on Zight does not constitute a waiver of any right in such information and materials
6.2. License by You to Host Your Content and Applications. You grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Content, and any Non-Zight Applications and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Content or any Non-Zight Application or program code. Notwithstanding the aforementioned, You grant to Us and Our Affiliates a royalty-free, perpetual, irrevocable, worldwide license to include your data usage analytics in anonymized aggregate combined with the anonymized data analytics from other customers for the purposes of discovering and establishing best practices and analyzing and publishing trends to the larger sales and marketing automation industry.
6.3. License by You to Use Feedback. If You choose to voluntarily provide any feedback to Us regarding Zight Services, We may use such feedback for any purpose, including incorporating the feedback into, or using the feedback to develop and improve Zight Services and other Zight offerings without attribution or compensation. You grant Us a perpetual and irrevocable license to use all feedback for any purpose. You agree to provide feedback to Us only in compliance with applicable laws and You represent that You have the authority to provide the feedback and that feedback will not include proprietary information of a third party. We acknowledge and agree that any feedback provided by the You under this Agreement is on an “as is” basis, without any warranty of any kind.
6.4. License and Agreement by You to Be a Reference. Subject to your satisfaction with the Services after 90 days, You agree to provide a positive statement, including Your company name, about your experience, either written or in video format, and or case study for use on the Zight website for marketing purposes. Once provided, You grant us a worldwide, perpetual, royalty-free license to use and incorporate such statements or case studies for the purposes of marketing and promotion. If You become dissatisfied with the Services, You may at any time revoke our right to use Your name in conjunction with your positive statement or case study.
7. CONFIDENTIALITY
7.1.Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Service Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Service Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2. These confidentiality terms supersede any prior documents executed by the parties governing protection of each other’s Confidential Information.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7.4. Remedies Upon Breach. Each party agrees that the other party may have no adequate remedy at law if there is a breach or threatened breach of this Section 7 and, accordingly, that either party may be entitled (in addition to any legal or equitable remedies available to such party) to seek injunctive or other equitable relief to prevent or remedy such breach.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that: (a) this Agreement, the Service Orders and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 4.1 (Integration with Non-Zight Applications), We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services will not introduce Malicious Code into Your systems. To the maximum extent permitted by applicable law and except as expressly provided in this Section 8.2, the Zight Purchased Services are provided “as is” and without any representations or warranties express or implied, and Zight disclaims all such representations and warranties. For any breach of an above warranty, Your exclusive remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY THE COURSE OF DEALING OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ZIGHT AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT: (A) THE ZIGHT PURCHASED SERVICES AND CONTENT WILL BE UNINTERRUPTED, SECURE, ERROR FREE, (B) ACCURATE OR COMPLETE OR COMPLY WITH REGULATORY REQUIREMENTS, (C) THAT ZIGHT WILL CORRECT ALL ERRORS, OR (D) THAT THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 8.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your Content or Customer Content, a Non-Zight Application or Your breach of this Agreement.
9.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. 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. LIMITATION OF LIABILITY
10.1. Limitation of Liability. NEITHER PARTY’S AND ITS AFFILIATES’ TOTAL AND AGGREGATE LIABILITY WITH RESPECT TO ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT WILL EXCEED THE FEES PAYABLE TO ZIGHT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHER LEGAL THEORY. THESE LIMITATIONS DO NOT LIMIT CLAIMS OF BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENCE OF A PARTY OR ITS AFFILIATES. ZIGHT WILL HAVE NO LIABILITY FOR DELAYS OR INTERRUPTION IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
10.2. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ITS AFFILIATES, WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, COVER OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR LOST OR DAMAGED DATA, LOST PROFITS, LOST SAVINGS OR BUSINESS OR SERVICE INTERRUPTION, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date of the last signature affixed below and continues until the Agreement is terminated by a party or all subscriptions hereunder have expired or have been terminated.
11.2. Term of Purchased Subscriptions. The term of each subscription (a “Subscription Term”) shall be as specified in the applicable Service Order. Except as otherwise specified in a Service Order, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term unless either party gives the other notice of non-renewal at least 90 days before the end of the relevant Subscription Term. Non-renewal notice must be provided by email to [email protected] or to the notice address specified in Section 11.3. Zight may elect to increase prices on any of its products at any time although no such price increases will be applied during your current subscription.
11.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice, sent by regular mail to the address in Section 11.3 to the other party of a material breach if such breach remains uncured after attempt to cure the breach for 90 days, or (ii) 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, (iii) either party may terminate a Service Order, or the Agreement (in which case all outstanding Service Orders will terminate) for convenience by providing the other party thirty (30) days written notice. If You terminate for convenience no refund will be provided. If We terminate for convenience, we will provide you a pro-rated refund of any pre-paid, but unused fees as of the date the Services are actually terminated.
Notice. All notices, including breach notification, shall be sent to:
If to Zight:
Name: Attn: Legal Department
Physical mail: 548 Market St. #35577, San Francisco, CA 94104
Email: [email protected]
If to Customer:
Name:
Physical mail address:
Email address:
11.4. Refund or Payment upon Termination. If this Agreement is terminated by You for our Breach, in accordance with Section 11.3 (Termination), We will refund You any prepaid but unused fees, less costs accrued through the termination date, covering the remainder of the term of all Service Orders after the effective date of termination. If this Agreement is terminated by Us for your Breach in accordance with Section 11.3, You will pay any unpaid fees covering the remainder of the term of all Service Orders within thirty (30) days of the termination date. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your data, and will thereafter delete or destroy all copies of Your data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
11.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Your Data,” “Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Governing Law and Claims. The Agreement, and any claim, controversy or dispute related to the Agreement, are governed by and construed in accordance with the laws of the State of Utah without giving effect to any conflicts of law provisions. To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply, even if adopted as part of the laws of the State of Utah. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the state or federal courts of San Francisco County, California, and each party irrevocably submits to the exclusive jurisdiction and venue of such Courts. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the earlier of the following: a) the expiration or termination of all subscriptions, b) the termination of this Agreement, or c) the time a party first became aware, or reasonably should have been aware, of the basis for the claim. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Whenever either party desires to institute any legal action against the other concerning this Agreement, it shall provide written notice to the other party. Prior to instituting any legal action, the party providing such notice shall refrain from instituting said legal proceedings for a period of ninety (90) days following the date of provision of such notice. During such period, the parties shall attempt in good faith to amicably resolve their dispute by negotiation among their executive officers.
12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing, in English, and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing via U.S postal mail, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination, breach, or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to person and address specified in Section 11.3.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service in a U.S.-embargoed or in violation of any U.S. export law or regulation.
13.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our legal department.
13.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other order documentation generated by You is void. The order of precedence among all documents executed among the parties shall be: (1) the applicable Zight Service Order, (2) this Agreement, and (3) the Documentation.
13.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Service Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.6. Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
13.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.9. Force Majeure: Force Majeure means any circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, pandemic, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Zight Applications, or denial of service attack. If the period of non-performance of one party exceeds 30 calendar days from receipt of notice of the force majeure event, the other party may, by giving written notice, terminate this Agreement.
13.10. No Class Actions. You and Zight agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Zight agree otherwise, a court may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
13.11. Third Party Content. Third party content may appear on the Services or may be accessible via links which appear on the Service (“Third Party Content”). If You choose to click, follow, respond to, or engage with any such Third Party Content, any terms, conditions, warranties or representations associated with such Third Party Content, is solely between You and the applicable third-party and You agree Zight disclaims all responsibility whatsoever for such content and Zight and its licensors shall have no liability, obligation or responsibility for any such Third Party Content, or any purchase or promotion therefrom between You and the provider of any such Third Party Content. In no event shall Zight or its licensors be responsible for any content, products, or other materials on or available from the parties represented by Third Party Content.
13.12.GDPR. The parties acknowledge that certain of the Personal Data processed under this Agreement may be governed by the General Data Protection Regulation (“GDPR”) adopted by the European Union. The capitalized terms in this Section 13.12 shall have the meaning given them in the GDPR. To the extent the Personal Data processed under this Agreement is subject to the GDPR, the parties agree to govern themselves as joint Controllers of the Processed Data (defined below) as follows:
13.12.1. “Customer Data” means the Personal Data related to Your customers and their employees, agents, and customers that is processed by You or Us using the Services. You are the Controller of the Customer Data, and we are the Processer of Customer Data.
13.12.2. “Anonymized Data” means the Customer Data after the Customer Data has been anonymized and aggregated and is rendered not identifiable to any individual. We are the Controller and the Processer of the Customer Data to the extent the Anonymized Data is subject to the GDPR.
13.12.3. “Usage Data” means usage information related to the use of the Services by Your customers and their employees, agents, and customers. As an example only, and not by way of limitation, “Usage Data” includes the times and dates You and your agents or customers log in to the Services, the pages accessed, latencies, type of device used, and other analytical information regarding the usage of the Services. It does not include any Customer Data. We are the Controller and the Processer of the Usage Data.