Last updated: 07-06-2022
These Zingtree Terms of Service (the “Terms”) are between Zingtree, Inc., a Delaware corporation (“Zingtree”) and the individual or organization agreeing to these terms (“Customer”). This Agreement governs access to and use of the Services. By clicking “I agree,” signing your contract for the Services, or using the Services, you agree to this Agreement as a Customer.
If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. If you are an End User, you are also agreeing to the End User Terms https://zingtree.com/end-user-terms.php on behalf of yourself. You represent and warrant that you have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN CUSTOMER AGREES TO THESE TERMS, IT IS AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN CUSTOMER AND ZINGTREE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 13 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
1.1 Provision. The Agreement governs access to, and use of, the Services registered for and/or subscribed to by Customer pursuant to an Order Form or other agreement (each, an “Order”). Customer and End Users may access and use the Services in accordance with the Agreement.
1.2 Orders. No Order will be deemed accepted by Zingtree unless and until Zingtree accepts the applicable Order Form in writing, or actually commences providing the Service to Customer in accordance with an Order Form, other agreement or terms made available to Customer at the time of Customer’s subscription to or registration for the Services via Zingtree’s website (the “Site”) or otherwise (collectively, “Order Terms”). All Order Forms will reference these Terms. An Order may include a subscription according to a pricing plan (such pricing plan, the “Pricing Plan”) and/or one-time payments for one-time services.
1.3 Modifications. Zingtree may update the Services from time to time. If Zingtree changes the Services in a manner that materially reduces their functionality, Zingtree will notify Customer at the email address associated with the account, and Customer may provide notice within thirty days of the change to terminate the Agreement. This termination right will not apply to updates made to features provided on a beta or evaluation basis. For certain significant new features, Zingtree may notify Administrators or End Users of the new features via email, provided that an option to unsubscribe from receiving such emails will be available to any potential recipient.
1.4 Optional Features. From time to time, Zingtree may make available certain Optional Features. Purchase of such Optional Features from Zingtree will be subject to the price quote Zingtree provides to Customer and the Order acceptance procedures specified hereunder, and Customer’s use of the Optional Features will be subject to the Agreement and the restrictions hereunder as if they are Services and any additional terms and conditions related to the Optional Features as specified by Zingtree in connection with Customer’s purchase.
1.5 Adding Customer End Users or Views. If Customer desires to increase the number of Customer End Users or Views that are permitted to use the Service, it will enter into a new Order (under the terms set forth above) for the additional number, including without limitation by adding accounts for such additional Customer End Users through the functionality in Services. For clarity, creation of End User Accounts for End Users beyond the limit or exceeding Views beyond the limit provided in the applicable subscription shall be deemed an Order and the Customer’s subscription shall be automatically upgraded to a Pricing Plan that permits for such number of End User Accounts and number of Views for the remainder of the Customer’s subscription. Zingtree shall be entitled to collect the applicable Fees for such End User Accounts or Views within the month that the increase occurs and charge the corresponding Fees for the upgraded Pricing Plan, pro-rated in the case of an annual subscription. Such Fees shall be updated based on the pricing of the upgraded Pricing Plan for the remainder of the Customer’s subscription. Zingtree may, in its discretion, allow or require the Services Term of the newly purchased subscription to be adjusted so as to expire or renew simultaneously with Customer’s pre-existing subscription and prorate the Fees under the upgraded Pricing Plan.
1.6 Support. Zingtree shall use commercially reasonable efforts to comply with the support and service obligations set forth in this Section 1.6. Zingtree is not responsible for delays or other problems in the operation of the Service to the extent caused by Customer’s failure to meet any specific obligations that are relevant to the operation of the Service or by any Outside Factors.
(a) Temporary Suspension. Zingtree may temporarily suspend the Services for necessary repairs, including, for example, if there is an interruption in our infrastructure provided by our third-party vendors. If Zingtree will effect such a suspension, Zingtree will provide Customer with reasonable prior written notice (email form acceptable) when commercially practicable under the circumstances, and Zingtree shall restore Availability of the Service as soon as commercially practicable.
(b) Professional Services. If Customer requests services that are outside the scope of Zingtree’s Support obligations under this Section 1.6, Zingtree may provide those services at its discretion and subject to availability of resources, and Customer shall pay for such services on a time-and-expenses basis at Zingtree’s then-current rates under a separate Order. Development, customization, coding, installation, integration, consulting, and training services are outside the scope of Zingtree’s Support obligations unless specifically agreed otherwise in writing.
(c) Standard Service Availability Hours; Scheduled Downtime.
(i) Standard Service Availability Hours are every day, 24 hours per day, but not including Scheduled Downtime. Scheduled Downtime may involve regular scheduled maintenance periods or may be scheduled by Zingtree as reasonably necessary for Application maintenance, updating or repair. Zingtree shall use commercially reasonable efforts to minimize the effects of such Scheduled Downtime on Customer’s regular business operations. Customer understands that Zingtree’s access to third-party business partners is subject to the operating hours, network availability, and performance of each business partner.
(ii) Uptime SLA Percentage. Zingtree shall endeavor to ensure that the Uptime SLA Percentage averages at least 99.9%. Subject to the applicable assumptions, dependencies and exceptions provided hereunder, Customer, with written request from within thirty (30) days of the month identified with a deficiency, will be entitled to a credit in the calendar month following a missed Uptime SLA Percentage as follows:
2. Policies and Plans.
2.1 Account Policies. (i) A Customer account will be created in connection with Customer’s use of Zingtree Service; (ii) The Customer account will be created upon registration for a "Free Plan", or upon purchase of a Zingtree subscription package.
2.2 Free Plan Policies. "Free Plan" refers to a no fee, limited version of a Zingtree plan, pertaining to a limited number of End Users Accounts, Views and/ or subscription period. The Free Plan terms will be noted under Pricing Plans on our website and/or on an Order Form, and are subject to changes from time to time.
2.3 Subscription Policies. Subscription to our Services is available under different Pricing Plans. Each Pricing Plan allows for a specified number of End User Accounts and a specified number of Views per month as set forth in the applicable Order Form, which may be updated pursuant to Section 1.5. Subscription to our Services permits End Users under their End User Accounts to create an unlimited number of decision trees and use an unlimited number of Views. End-users of the Services without End User Accounts can use as many Views per month as available in the Customer’s Pricing Plan. If, in any given month, the Views in the Customer’s Pricing Plan are not used by Customer’s end-users, then the available Views will expire at the end of such month, whether or not the Customer is on the monthly or yearly subscription. A yearly subscription is defined on a 365 day renewal period, and a monthly subscription is defined on a 30 day renewal period. Your account is automatically recharged with your current Pricing Plan every renewal period until you cancel. If your charge fails to pay for the renewal, we will notify you by e-mail with three (3) separate notices. If within five (5) business days of the third (3rd) notice that payment is due or delinquent, or if you do not update payment information upon request, we may suspend or terminate your account. (iii) You can cancel a subscription at any time. Access to the subscription will continue until the renewal date. At which time, the account will expire, and become inaccessible.
3. Customer Obligations.
3.1 Customer Administration of the Services. To the extent allowed via the functionality of the Services through the Admin Console, or via written notice to Zingtree (including via email), Customer may specify End Users and designate End Users as Administrators. Administrators may be able to: (a) access, disclose, restrict or remove Customer Data in or from End User Accounts; and (b) monitor, restrict, or terminate access to End User Accounts, or request the same in writing to Zingtree. Customer is responsible for maintaining the confidentiality of passwords and Admin Accounts, and managing access to Admin Accounts.
3.2 Unauthorized Use or Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. Each End User Account may only be provisioned to, registered and used by a single End User. The Services are not intended for End Users under the age of eighteen (18). Customer will not allow any person under eighteen (18) to use the Services. Customer will promptly notify Zingtree of any unauthorized use of or access to the Services. Customer understands that failure to protect Account Data may allow an unauthorized person or entity to access the Services. In addition, Customer acknowledges that Zingtree generally does not have access to and cannot retrieve lost Account Data. Customer agrees that: (i) Customer is solely responsible for collecting, inputting and updating all Account Data; (ii) Zingtree assumes no responsibility for the supervision, management or control of Customer’s and Customer End User’ Account Data; and (iii) Zingtree assumes no responsibility for any fraudulent or unauthorized use of the any portion of the Service.
3.3 Customer Responsibilities. Customer will (i) be responsible for meeting Zingtree’s applicable minimum system requirements for use of the Service and any applicable Optional Features; (ii) be responsible for Customer End Users’ compliance with these Terms, the End User Terms and for any other activity (whether or not authorized by Customer) occurring under Customer’s account, (iii) use the Services and any applicable Optional Features only in accordance with the applicable documentation and any written instructions provided by Zingtree to Customer.
3.4 Restrictions. Except as specifically provided in the Order Terms, Customer will not: (a) sell, resell, or lease the Services or make them available to anyone other than Customer End Users; (b) use the Services for activities where use of the Services could lead to physical damage, death, or personal injury; (c) reverse engineer the Services, or attempt or assist anyone else to do so, unless this restriction is prohibited by law; (d) use the Services, including the export or re-export of Customer Data, in violation of Export Control Laws; (e) violate or circumvent any Service Limits of the Services or otherwise configure the Services to avoid Service Limits; or (f) establish a business account as an individual for personal, family, or household purposes.
(a) Generally. Customer and its End Users will use the Services in compliance with the Acceptable Use Policy. Customer will comply with laws and regulations applicable to Customer’s use of the Services. Customer represents and warrants that it has all necessary rights and consent to submit Customer Data to Services to be processed as provided hereunder. Customer must satisfy itself that the Services are appropriate for its purposes, taking into account the nature of the Customer Data.
(b) End Users. Customer is responsible for use of the Services by its End Users. Customer will obtain and maintain from End Users any consents necessary to allow Administrators to engage in the activities described in the Agreement and to allow Zingtree to deliver the Services.
(c) Customer Actions. Customer represents and warrants that (i) Customer will not take any action that would cause Zingtree to violate EU Data Protection Laws, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, or any other applicable anti-bribery, anti-corruption, or anti-money laundering law, and (ii) Customer Data shall not include any personal information other than information necessary for End User Accounts that are specifically requested by Zingtree.
(d) Federal Government End Use Provisions. The Services (and applicable Optional Services) and any Software and documentation furnished by Zingtree in connection therewith are “commercial items,” “commercial computer software” and “commercial computer software documentation,” as those terms are used in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. Use, duplication, or disclosure by the United States Government is subject to the restrictions set forth in this Agreement and (where applicable) Zingtree’s End User Terms https://zingtree.com/end-user-terms.
3.6 Support Requests. Customer agrees, in addition to using its reasonable efforts to provide Zingtree with all relevant information reasonably necessary for Zingtree to respond to a Support request and Customer’s general Cooperation: (a) to designate liaisons who have been trained on the Service and to provide Zingtree with all necessary contact information for those individuals; (b) that all Support requests will be centralized through the liaisons; (c) to submit Support requests to Zingtree’s product support channel; (d) to use reasonable efforts to diagnose and resolve problems in the operation of Customer’s interface to the Service prior to contacting Zingtree for Support; (e) to use reasonable efforts to confirm that reported problems are due to a malfunction of the Service; (f) to use reasonable efforts to consult Zingtree-supplied documentation before submitting questions about the Service to Zingtree; and (g) to work with Zingtree to return Support requests to reasonable levels if Zingtree deems that Customer’s Support requests exceed reasonable or typical levels for the Service. Customer must notify Zingtree of any problems with the Service in a timely manner (depending on the circumstances, but in no event later than thirty (30) days after becoming aware of an issue with the Service).
4. Customer Data.
4.1 Customer Data Limitations. Zingtree and its Subcontractors will only access, use, store, and transfer Customer Data to deliver the Services and to fulfill Zingtree’s obligations and enjoy Zingtree’s rights under the Agreement, including under Section 8.6. Any Zingtree personnel who have access to Customer Data will be bound by appropriate confidentiality obligations and access such data as needed in the performance of their job.
4.2 Security Measures. Zingtree will use industry standard technical and organizational security measures to transfer, store, and process Customer Data, including encryption of Stored Data and at rest. Zingtree will provide Customer with at least sixty days prior notice if Zingtree updates its security measures in a manner that materially diminishes the administrative, technical, or physical security features of the Services taken as a whole. Within five business days of receipt of this notice, Customer may elect to terminate the Agreement and associated Orders by providing written notice to Zingtree.
4.3 Third-Party Requests.
(a) Customer Responsibility. Customer is responsible for responding to Third-Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third-Party Requests and will contact Zingtree only if it cannot comply with the Third-Party Request despite diligent efforts.
(b) Zingtree Responsibility. Unless otherwise provided in a Customer Agreement, if Zingtree receives a Third-Party Request, Zingtree will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (i) notify Customer of Zingtree’s receipt of a Third-Party Request; (ii) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third-Party Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third-Party Request, if Customer is otherwise unable to respond to the Third-Party Request. If Zingtree is prohibited from notifying Customer of a Third-Party Request or Customer fails to promptly respond to any Third-Party Request, then Zingtree may, but will not be obligated to do so, to the extent permitted by applicable law.
(c) Customer Data Sharing. The Services may enable End Users to share Customer Data, including to other Customer End Users and to third parties. Recipients of shared Customer Data may access, view, download, and share this Customer Data, including in and through their own Services accounts. Customer understands: (a) it is solely Customer's, and its End Users', choice to share Customer Data; (b) Zingtree cannot control third parties with whom Customer or any End User has shared Customer Data; and (c) Customer and its End Users are solely responsible for their use of the Services, including any sharing of Customer Data through the Services.
5. Data Transfers.
5.1 Data Transfer. Unless otherwise provided in the applicable Order Terms or any Customer Agreement, Customer agrees that Zingtree and its Subcontractors may transfer Customer Data to and Process Customer Data in locations other than Customer's country.
6.1 Fees. To the extent there are any Fees that apply to the Services (and, if applicable, any Optional Features), Customer will pay Zingtree all such Fees for the Services according to the applicable Order, including the prices in the applicable Pricing Plan as it may be upgraded from time to time pursuant to the terms and conditions hereunder, in U.S. dollars and pursuant to the payment terms indicated on the Order. Customer authorizes Zingtree to charge Customer for all applicable Fees using Customer's selected payment method. Fees are non-cancellable and non-refundable except as required by law or as otherwise specifically permitted in the Agreement. Customer agrees that Customer’s purchase of subscriptions for the Service hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Zingtree regarding future functionality or features.
6.2 Payment and Authorization. Customer will pay Zingtree Fees on the payment interval set forth in the Order as such Order may be updated pursuant to the terms herein, including without limitation Section 1.5. Zingtree may suspend or terminate the Services if Fees are past due. Customer will provide complete and accurate billing and contact information to Zingtree or, if applicable, to Customer's reseller. Customer expressly authorizes Zingtree (and Zingtree’s third-party payment processor) to charge Customer for each Transaction. Zingtree may require Customer to supply additional Payment Information. Customer represents and warrants that it has the legal right to use all payment method(s) represented by any Payment Information. By initiating a Transaction, Customer authorizes Zingtree to provide Customer’s Payment Information to third parties to complete such Transaction and to charge Customer’s payment method for the Transaction (plus any applicable Taxes and other charges). Customer agrees to provide additional information to verify Customer’s or its representative’s identity before completing any Transaction and such information shall be deemed to be Payment Information. By initiating a Transaction, Customer agrees to the pricing, payment and billing policies applicable to Fees, Taxes and such applicable charges. All payments for Transactions are non-refundable and non-transferable except as expressly provided in this Agreement. All Fees, Taxes and applicable charges are payable in United States dollars.
6.3 Taxes. Fees are exclusive of taxes and Customer is responsible for all Taxes. Zingtree will charge Taxes when required to do so.
6.4 Withholding Taxes. If Zingtree qualifies for a tax exemption, or a reduced treaty withholding rate, Zingtree may provide Customer with and Customer shall consider in good faith reasonable documentary proof. If Customer is legally obligated to withhold or deduct any Withholding Taxes, Customer will provide Zingtree reasonable written evidence that it has paid the relevant authority for the sum withheld or deducted.
6.5 Auto-renewals. IF THE CUSTOMER'S ACCOUNT IS SET TO AUTO-RENEWAL, ZINGTREE MAY CHARGE AUTOMATICALLY FOR THE RENEWAL, UNLESS THE CUSTOMER NOTIFIES ZINGTREE THAT THE CUSTOMER WANTS TO CANCEL OR DISABLE AUTO-RENEWAL IN ACCORDANCE WITH THIS AGREEMENT. Zingtree may revise Services rates by providing the Customer at least thirty (30) days' notice prior to the next charge for annual subscriptions and at least fourteen (14) days’ notice prior to the next charge for monthly subscriptions. Customer will be charged the Fees, Taxes and applicable charges for any subscription for use of the Services, at the beginning of the Initial Services Term and Renewal Term, at the then-current amounts. BY PURCHASING A SUBSCRIPTION, CUSTOMER AUTHORIZES ZINGTREE TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. Zingtree (or its third-party payment processor) may automatically charge Customer at the beginning of the Initial Services Term and Renewal Term, using the Payment Information until Customer cancels such subscription. No less than thirty (30) days and no more than sixty (60) days before such subscription term ends, or otherwise in accordance with applicable law, Zingtree will send you a reminder with the then-current Fees. By agreeing to these Terms and electing to purchase a subscription, Customer acknowledges that the subscription has recurring payment features and accepts responsibility for all recurring payment obligations prior to cancellation of the subscription by Customer or Zingtree, in accordance with this Agreement. Each subscription continues until canceled by Customer or Customer terminates Customer’s access to or use of the Services or subscription, in accordance with this Agreement.
6.6 Canceling Subscription. Upon Customer’s Transaction, CUSTOMER’S PURCHASE IS FINAL AND CUSTOMER WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF PAYMENT FOR SUCH TRANSACTION (OR ANY APPLICABLE TAXES) AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, Zingtree reserves the right to cancel Customer’s Transaction for any reason; if Zingtree cancels Customer’s Transaction, Zingtree will refund any payment Customer has already remitted to Zingtree for such Transaction. Without limiting the foregoing, Customer may cancel its subscription at any time, but such cancellation will be effective at the end of the then-current Initial Service Term (or Renewal Term, as applicable). CUSTOMER WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE PAYMENT FOR ANY TRANSACTION FOR THE INITIAL SERVICE TERM (OR RENEWAL TERM, AS APPLICABLE) THEN CURRENT AT THE TIME OF CANCELLATION. To cancel, Customer can send an email to: firstname.lastname@example.org. Customer will be responsible for all Fees (plus any applicable Taxes and other charges) incurred for the then-current Initial Service Term (or Renewal Term, as applicable). If the Customer cancels, Customer’s right to use the Services will continue until the end of Customer’s then current subscription period and will then terminate without further charges.
7.1 Of End User Accounts by Zingtree. If an End User: (a) violates the Agreement; or (b) uses the Services in a manner that Zingtree reasonably believes will cause it liability, then Zingtree may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Zingtree may do so.
7.2 Security Emergencies. Notwithstanding anything in the Agreement, if there is a Security Emergency, Zingtree may automatically suspend use of the Services. Zingtree will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.
8. Intellectual Property Rights.
8.1 Reservation of Rights. Except as expressly set forth herein, the Agreement does not grant: (a) Zingtree any Intellectual Property Rights in Customer Data; or (b) Customer any Intellectual Property Rights in the Services or Zingtree trademarks and brand features.
8.2 Customer Data. Customer grants Zingtree and Subcontractors (a) the limited rights that are reasonably necessary for Zingtree to deliver the Services, including to Process Stored Data, (b) Improvement Rights, and (c) to disclose Stored Data as may be required by applicable law. Zingtree shall own and Customer hereby assigns and agrees to assign to Zingtree all rights, title and interest in and to any and all Improvements. At Zingtree’s request and expense, Customer will execute documents and take such further acts as Zingtree may reasonably request to assist Zingtree to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the Improvements.
8.4 Customer IP. Zingtree hereby grants to Customer a non-exclusive, worldwide license, with the right to sublicense under the Intellectual Property Rights in and to the Results during the Services Term.
8.5 Customer Works. From time to time, the Customer may create certain Inventions, including but not limited to decision trees, templates, algorithms and webhooks, while using the Services (collectively and together with all Intellectual Property Rights therein and thereto, the “Customer Works”). If a Customer is participating in a Free Plan (including if a Customer who previously purchased a Zingtree subscription package, but subsequently moved to the Free Plan), then the Customer hereby grants to Zingtree a worldwide, non-exclusive, irrevocable, permanent, royalty-free, fully paid, sublicensable license to make, use, sell, offer for sale, import, reproduce, prepare derivative works based upon, distribute, publicly perform, publicly display and otherwise exploit the Customer Works for its business purposes and provision and improvement of Services to you and other customers (the “Customer Works License”); provided however that if a Customer who is on the Free Plan purchases a Zingtree subscription, then Zingtree will remove Customer’s decision trees from being publicly available upon written notice by Customer to Zingtree.
9.1 Agreement Term. The Agreement will remain in effect for the Term.
9.2 Services Term. Zingtree will deliver the Services to Customer for the Services Term, unless the Agreement is terminated as set forth herein.
9.3 Automatic Renewals. Unless otherwise specified in the Order, following the Initial Services Term or a Renewal Term, the subscription to the Services will automatically renew for a Renewal Term, unless either party gives the other written notice of termination prior to the expiration of the then-current Services term.
10.1 Termination for Cause. Either party may terminate the Agreement, including all Orders, if: the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice thereof; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days. In the event of termination of the Agreement for Customer’s material breach, Customer shall remain responsible for the Fees through the end of the then-current Services Term. Zingtree may terminate this Agreement and suspend Customer’s access to the Services if required to do so by law or for a violation by Customer of the Acceptable Use Policy.
10.2 Termination for Convenience: Customer may terminate the Agreement for any reason or no reason with thirty (30) days prior written notice to Zingtree; provided that Customer shall remain responsible for the Fees through the end of the then-current Services Term.
10.3 Effects of Termination. If the Agreement expires or is terminated: (a) except as set forth in this Section, the rights and licenses granted by Zingtree to Customer will cease immediately; and (b) Customer may, prior to termination, request reasonable additional time (not to exceed thirty (30) days) to export its Stored Data, provided that Zingtree may charge Customer for this extended access based on Zingtree's then-current standard fees, subject to the rights granted to Zingtree hereunder. Zingtree may delete any End User Accounts and/or Stored Data in Customer's account upon termination or expiration of this Agreement. Zingtree may make instructions available to Customer regarding how to submit the Administrator request described in clause (c) of the previous sentence and Customer is responsible for following these instructions to initiate a deletion.
10.4 Survival. The following sections will survive expiration or termination of the Agreement: 4.3 (Third Party Requests), 6 (Payment), 8 (Intellectual Property Rights), 10.3 (Effects of Termination), 10.4 (Survival), 11 (Indemnification), 12 (Disclaimers), 13 (Limitation of Liability), 14 (Dispute Resolution), and 15 (Miscellaneous). Notwithstanding the foregoing, Section 4.3 (Third Party Requests) shall not survive termination if Zingtree has exercised a right to terminate the Agreement.
11.1 By Customer. Customer will indemnify, defend, and hold harmless Zingtree from and against all claims, liabilities, damages, losses, penalties, expenses and costs (including settlement costs and reasonable fees and expenses of attorneys and other professionals) arising out of any Claim against Zingtree and its Affiliates regarding: (a) Customer Data; or (b) Customer's, or Customer's End Users', use of the Services in violation of the Agreement.
11.2 By Zingtree. Zingtree will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any Claim against Customer to the extent based on an allegation that Zingtree's technology used to deliver the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Zingtree have any obligations or liability under this section arising from: (a) use of any Services in a modified form or in combination with materials not furnished by Zingtree; and (b) any content, information, or data provided by Customer, End Users, or other third parties.
11.3 Possible Infringement. If Zingtree believes the Services infringe or may be alleged to infringe a third party's Intellectual Property Rights, then Zingtree may: (a) obtain the right for Customer, at Zingtree's expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If Zingtree does not believe the options described in this section are commercially reasonable, then Zingtree may suspend or terminate Customer's use of the affected Services, with a pro-rata refund of prepaid fees for the Services.
11.4 General. 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: (a) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE ZINGTREE AND CUSTOMER'S ONLY REMEDY UNDER THE AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
12.1 Generally. THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, NEITHER CUSTOMER NOR ZINGTREE AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR USING THE SERVICES IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.
13. Limitation of Liability.
13.1 Security and Other Risks. Customer acknowledges that, notwithstanding the security features of the Services, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure. Zingtree will have no liability on account of any security breach caused by any such persons, entities, or technologies. Customer further acknowledges that the Services are not guaranteed to operate without interruptions, failures, or errors. If Customer or Customer End Users use the Service in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and shall indemnify Zingtree and hold it harmless against those risks.
13.2 Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ZINGTREE OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR ZINGTREE AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THE AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.3 Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, ZINGTREE'S AGGREGATE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE GREATER OF $100 OR THE AMOUNT PAID BY CUSTOMER TO ZINGTREE HEREUNDER DURING THE INITIAL SERVICE TERM (OR RENEWAL TERM, AS APPLICABLE) THEN_CURRENT AT THE TIME OF THE EVENT GIVING RISE TO LIABILITY, NOT TO EXCEED AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING SUCH EVENT.
14. Dispute Resolution.
14.1 Mandatory Arbitration of Disputes. Disputes will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. Zingtree and Customer agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement. Zingtree and Customer are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
14.2 Exceptions. As limited exceptions to Section 14.1 above, Zingtree and Customer: (i) may each seek to resolve a Dispute in small claims court if it qualifies; and (ii) each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
14.3 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in San Francisco, California. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
14.4 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
14.5 Injunctive and Declaratory Relief. Except as provided in Section 14.2 above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent the prevailing party seeks public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief shall be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
14.6 Class Action Waiver. ZINGTREE AND CUSTOMER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with Customer’s or Zingtree’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
14.7 Severability. With the exception of any of the provisions in Section 14.6 of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
15.1 Terms Modification. Zingtree may revise this Agreement from time to time and the most current version will always be posted on the Site. If a revision, in Zingtree's sole discretion, is material, Zingtree will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to the Site, and Customer is responsible for checking these postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may not use the Services anymore and may terminate the Services within thirty days of receiving notice of the change.
15.2 Entire Agreement. Except for any Customer Agreement referenced in the Order, the Agreement supersedes any prior agreements or understandings between the parties, and constitutes the entire agreement between the parties related to such subject matter. All attachments to these Terms, the Customer invoices, Order Terms and Order Forms executed by the parties, are hereby incorporated into the Agreement by this reference.
15.3 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up the Agreement or any Customer Agreement, the documents will control in the following order: the invoice, the applicable Order Form or Order Terms, any Customer Agreement referenced in the Order, these Terms, the End User Terms; provided however that no term in any invoice, Order Terms, Service Addendum, Order Form, or End User Terms will be deemed to amend these Terms unless such term references a specific provision in these Terms and provides that it is amending only that specific provision of these Terms and only with respect to Services performed pursuant to such invoice, Order Terms, Service Addendum or Order Form. The terms and conditions of the Agreement will be considered the confidential information of Zingtree, and Customer will not disclose the information to any third parties. Customer agrees that any terms and conditions on a Customer purchase order will not apply to the Agreement and are null and void. If End Users are required to click through terms of service in order to use the Services, those click through terms are subordinate to this Agreement and the Agreement will control if there is a conflict.
15.4 Governing Law. The agreement will be governed by California law except for its conflicts of laws principles.
15.5 Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent permitted by law and the parties’ fundamental intentions hereunder, and the remaining provisions shall not be affected or impaired.
15.6 Notice. Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Zingtree must be sent to Zingtree Legal at email@example.com, with a copy to Zingtree, Inc., 700 Larkspur Circle, Suite 199, Larkspur, CA, 94930, attn.: Legal Department.
15.7 Waiver. Waiver of any term or provision of this Agreement or forbearance to enforce any term or provision by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or provision or a waiver of any other term or provision of this Agreement.
15.8 Assignment. Customer may not assign or transfer the Agreement or any rights or obligations under the Agreement without the written consent of Zingtree, except that Customer may assign the Agreement together with any Customer Agreement to the surviving entity in connection with a merger, acquisition, or sale of all or substantially all of its assets by providing written notice to Zingtree. Zingtree may freely assign the Agreement or any rights or obligations under the Agreement without providing notice to Customer. Any impermissible attempt to transfer or assign this Agreement is void.
15.9 No Agency. Nothing in this Agreement shall in any way be construed to constitute either party or any such party’s employee or contractor as an agent, employee or representative of the other party, but Zingtree shall perform the Services as an independent contractor. Neither party nor any such party’s employees and contractors have any authority to bind the other party by contract or otherwise.
15.10 Force Majeure. Except for payment obligations, neither Zingtree nor Customer will be liable for inadequate or delayed performance to the extent caused by a Force Majeure Event.
15.11 No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under the Agreement.
15.12 Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
15.13 Publicity. Each party shall have the right to publicly announce the existence of the business relationship between parties. In addition, during the Service Term, Zingtree may use Customer Marks on the Site and marketing materials to identify Customer as Zingtree’s customer, provided that Zingtree shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer Marks. Customer agrees to serve as a reference customer of Zingtree and shall cooperate with Zingtree's reasonable marketing and referencing requests.
“Acceptable Use Policy” means the Zingtree acceptable use policy set forth at the following link: https://zingtree.com/en/acceptable-use-policy.php.
“Account Data” means the account and contact information submitted to the Services by Customer or End Users.
“Administrator” means a Customer-designated technical End User who administers the Services to End Users on Customer's behalf, through multiple tiers.
“Admin Account” means an administrative account provided to Customer by Zingtree for the purpose of administering the Services.
“Admin Console” means the online tool provided by Zingtree to Customer for use in administering the Services.
“Affiliate” means any entity that controls, is controlled by or is under common control with a party, where “control” means the ability to direct the management and policies of an entity.
“Agreement” means, collectively, these Terms, Order Terms and each applicable Order Form entered into by the parties.
“Application” means the combination of computer hardware, computer software programs, and data transmission facilities under the control of Zingtree that Zingtree uses to provide the Service to Customer.
“Available” or “Availability” means that the Application is performing substantially in accordance with its expected minimum functionality requirements.
“Claim” means a claim by a third party, including a regulatory claim or penalty.
“Cooperation” means Customer’s general cooperation and providing assistance and access to necessary personnel and suitably configured Customer systems, as required in order for Zingtree to perform its obligations under the Order, Customer’s timely submission of data in a reasonably agreed-upon format; and Customer’s timely furnishing of information and responses to Zingtree’s requests.
“Customer Agreement” means a written agreement between Zingtree and Customer executed by the parties’ authorized representatives relating to the subject matter hereof that is specifically referenced in the Order.
“Customer Data” means Stored Data and Account Data.
“Customer Marks” means Customer’s name, trademarks, and logos.
“Dispute” means any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services.
“Effective Date” means the date specified in the applicable Order.
“End Users” means users of Customer's Services account that have an End User Account either from the Customer’s purchase of the subscription package or in accordance with Section 1.5 of these Terms. End Users may include Customer's and its Affiliate's employees and consultants.
“End User Account” means a Zingtree hosted account established by Customer through the Services for an End User.
“EU Data Protection Laws” means, to the extent in force and applicable from time to time, those laws implementing the EU General Data Protection Regulation (2016/679) and any implementing laws in each EU member state.
“Export Control Laws” means all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
“Fees” means the amounts specified to Customer by Zingtree for the Services in the applicable Order.
“Free Plan” has the meaning set forth in Section 2.2.
“Force Majeure Event” means any condition that was beyond the party's reasonable control, including but not limited to natural disasters, acts of war or terrorism, riots, strikes, labor conditions, epidemics, pandemics, governmental actions, Internet disturbances, denial-of-service attacks, insurrections, fires, floods, storms, explosions, acts of God, earthquakes and material and other shortages.
“HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104191, as amended by the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009, and their related regulations promulgated by the Secretary of the U.S. Health and Human Services.
“Improvements” means (a) all Inventions that are conceived, reduced to practice or made by or on behalf of Zingtree or Subcontractors, alone or jointly with others that result from or that are related to Improvement Rights or the Customer Works License, including without limitation De-identified Data, and (b) all feedback, comments, and suggestions for improvements that Customer provides to Zingtree regarding the Services, together with all Intellectual Property Rights therein.
“Improvement Rights” means the right to (a) Process anonymized or aggregated data regarding the usage and performance of the Services, including data derived from Customer Data, and create data where the data subject to which it relates, if any, is not identifiable and, to the extent derived from PHI, complies with 45 C.F.R. § 164.514(b) (“De-identified Data”), (b) combine PII and/or PHI disclosed by Customer to Zingtree with Customer Data disclosed by other entities (“Aggregate Data”), (c) Process De-identified Data and Aggregate Data without restriction for any purpose.
“Initial Services Term” means the term for the applicable Services beginning on the Provisioning Date and continuing for the duration set forth in the Order. The Initial Services Term may include a Free Plan period as specified in the applicable Order.
“Inventions” means technology, know-how, trade secrets, works of authorship, materials, notes, records, data, designs, ideas, inventions, improvements, devices, developments, discoveries, processes, methods, techniques, whether or not patentable or copyrightable.
“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, intellectual property rights, proprietary rights, and other similar rights.
“Optional Features” means custom services, including without limitation training and custom tree creation services, and any services or features listed on the Site that are not specifically included in the Order Terms, including without limitation services and features listed here: https://blog.zingtree.com/address-verification-decision-trees/,https://blog.zingtree.com/validate-email-phone-numbers-decision-tree-data-entry/ which list may be updated from time to time by Zingtree, provided that features incorporated in the Services as of the Effective Date will not be transitioned to the Optional Features list during the Term. Optional Features include, without limitation, any configuration, integration, training, customization or other services with respect to the Services for use by Customer in Customer's systems or in accordance with Customer's requirements or specifications, except those services included in the applicable Order.
“Order Form” means the ordering document, or order page, for the Services.
“Outside Factors” means downtime caused by circumstances beyond Zingtree’s control, including without limitation: Customer modifications, Force Majeure Events, general internet outages, failure of Customer’s infrastructure or connectivity, computer and telecommunications failures and delays not within Zingtree’s control, delays or unavailability due to credit bureaus or internet service providers, and network intrusions or denial-of-service attacks.
“Payment Information” means information relevant to a Transaction, including without limitation Customer’s credit card number, its expiration date and Customer’s email and postal addresses for billing and notification.
“PHI” means Protected Health Information which information is subject to protection under HIPAA.
“PII” means all data or information that constitutes personal data, PHI or personal information under any applicable law.
“Possible Available Uptime” means possible hours of Service Availability in the month (based on Standard Service Availability Hours) minus any Scheduled Downtime and downtime caused by Outside Factors during the month.
“Processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, analysis, processing, storage, adaptation, alteration, retrieval, consultation, access, use, disclosure by transmission, dissemination or otherwise making available, alignment, combination, restriction, erasure or destruction.
“Product Support Hours” are 6:00 a.m. to 6:00 p.m. PST, Monday through Friday, excluding holidays observed by Zingtree in the United States.
“Provisioning Date” is the date upon which Zingtree makes the Services available to Customer.
“Renewal Term” means, unless otherwise agreed to in writing by the parties, the twelve-month renewal term following either the Initial Services Term, or a previous Renewal Term. Renewal Terms are set forth in the Order.
“Results” means the results or reports generated specifically for or by Customer through Customer’s use of the Services, excluding any and all Zingtree Background IP and Services.
“Scheduled Downtime” means time designated by Zingtree in advance when the Service will be unavailable. Scheduled Downtime is normally used to allow Zingtree to properly maintain and/or update the Application or to maintain the performance of the Service.
“Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to deliver the Services; or (ii) unauthorized third-party access to the Services.
“Services” means the services ordered by Customer in the Order.
“Services Addendum” means a document attached to an Order Form that lists particular Services and includes terms and conditions specific to those Services.
“Services Term” means the Initial Services Term and all Renewal Terms for the applicable Services.
“Service Limits” means rate, storage, End User or other limits on Customers use of the Services as described in the applicable Order.
“View” means an instance by an end-user in which a decision tree is loaded on their browser. Depending on the particular subscription plan, such end-user may be a Customer-internal end--user or a third-party end-user.
“Stored Data” means the files uploaded to the Services by Customer or End Users.
“Subcontractor” means an entity to whom Zingtree subcontracts any of its obligations under the Agreement.
“Support” means work performed by Zingtree or its agents in connection with ensuring that the Service performs the functions described in the Order.
“Standard Service Availability Hours” means time when the Service can be expected to be Available.
“Taxes” means any sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, (including but not limited to ISS, CIDE, PIS, CONFINS), levy, duty or other charge of any kind or nature assessable by any local, state, provincial, federal or foreign jurisdiction, excluding tax that is based on Zingtree's net income, associated with the Services, including any related penalties or interest.
“Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of all applicable Services Terms; or (ii) the Agreement is terminated as set forth herein.
“Third-Party Request” means a request from a third-party for records relating to an End User's use of the Services including information in or from an End User Account, or from Customer's Services account. Third-Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users, or an End User's authorized representative, permitting a disclosure.
“Transaction” means a one-time payment or a subscription for Customer’s use of the Services.
“Unscheduled Downtime” means any time during Standard Service Availability Hours when the Service is not Available, other than Scheduled Downtime and downtime caused by Outside Factors.
“Uptime” means the time when the Service is operational in accordance with this SLA and the applicable user guide or documentation.
“Uptime SLA Percentage” means: the value calculated by the following formula measured on a monthly basis: (Possible Available Uptime - Unscheduled Downtime) / (Possible Available Uptime) x 100%
“Withholding Taxes” mean any income taxes that are imposed on Zingtree in which Customer is required by law to withhold or deduct on the payment to Zingtree.
“Zingtree Background IP” means all Inventions that are conceived, reduced to practice or made by or on behalf of Zingtree alone or jointly with others, including all Intellectual Property Rights therein.