General Terms and Conditions for Zingle Services
Last Edited: February 22, 2022
1.1. “Account Information” means Customer’s and its Authorized Users’ registration information with respect to the Service.
1.2. “Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights or Controls or is under common Control with that legal entity.
1.3. “Agreement” means these General Terms and Conditions together with any Order Form referencing these General Terms and Conditions and any other schedules, supplements, statements of work, exhibits or appendices hereto or thereto, whether attached or incorporated by reference.
1.4. “Authorized User” means Customer, its Affiliates, and its and their employees, agents, contractors, consultants, suppliers or other individuals who are authorized by Customer or such Affiliate to interact with the Service, subject to any imitations set forth in an Order; Consumers are not Authorized Users.
1.5. “Communication” means, with respect to the Service, the interaction between an Authorized User and a Consumer via text messages submitted through a phone number provided by Zingle, or by the conversion of an existing landline phone number Customer provides to Zingle. Communications may be for social interaction, exchange of information, sale and order of products or services from or through Customer, or any other legal purposes. “Communicate” will be construed accordingly.
1.6. “Confidential Information” means, with respect to Customer, the Customer Data, marketing and business plans and/or Customer financial information, and with respect to Zingle: (i) the Service, including, without limitation, all (a) computer software (both object and source codes), Documentation and other Zingle Materials; (b) techniques, concepts, methods, processes and designs embodied in or relating to the Service; and (c) all application program interfaces, system security and system architecture design relating to the Service; (ii) Zingle research and development, product offerings, pricing and availability; and (iii) any non-standard, custom, or specifically negotiated terms and conditions relating to the Service, including, without limitation, the existence thereof. In addition to the foregoing, Confidential Information of either Zingle or Customer (the party disclosing such information being the “Disclosing Party”) includes information which the Disclosing Party protects against unrestricted disclosure to others that (x) the Disclosing Party or its representatives designates as confidential at the time of disclosure; or (y) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure, including, without limitation, information about or concerning any third party that is disclosed under the Agreement.
1.7. “Consulting Services” means implementation, configuration, training, and other similar services related to the Service as set forth in the Order as Consulting Services.
1.8. “Consumers” means Customer’s end-users who use the Service to Communicate with Customer.
1.9. “Control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract or otherwise. Any such company shall be considered an Affiliate for only such time as such interest or control is maintained.
1.10. “Customer Data” means any content, materials, data and information that Customer or its Authorized Users enter into the Service.
1.12. “Documentation” means Zingle’s then-current technical and/or functional documentation for the Platform.
1.13. “Fees” means the subscription fees and other charges for the Services to be paid by Customer in accordance with Section 5.1
1.14. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
1.15. “Non-Public Personal Information” means personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers, provided, however, Non-Public Personal Information specifically does not include names, email addresses, mobile phone numbers or derived information such as segments, scores, or lifecycle attributes used to make decisions within the Service.
1.16. “Platform” means Zingle’s proprietary on-demand text messaging service that enables an Authorized User to Communicate with Consumers.
1.17. “Order” means the mutually agreed order form governed by these General Terms and Conditions pursuant to which Customer purchases a right to utilize the Service. Each Order shall set forth, if and as applicable) the level of Service, the Subscription Term, Fees and other charges and any other parameters governing the use of the Service by Customer.
1.18. “Service” means the hosted access to, use of, and basic support services with respect to the Platform and other Zingle Materials, subject to the terms of this Agreement and the applicable Order(s).
1.19. “Subscription Term” means the length of the term for which the Customer subscribes to the Service, as detailed in the applicable Order; in the event no Subscription Term is set forth therein, the Subscription Term shall be one year.
1.20. “System Availability” means the time during which the production version of the Service is available to Customer, excluding (i) any maintenance windows; (ii) delays due to conditions beyond the reasonable control of Zingle; (iii) delays caused by systems outside of the Service, including, but not limited to, Customer’s network, equipment and systems; (iv) micro outages (meaning an inaccessibility that lasts less than thirty (30) minutes); and (v) inaccessibility due to Customer’s requests or where Customer approved the same in advance.
1.21. “Zingle Materials” means collectively, the Platform, Documentation, and/or the Zingle phone number(s) provided by Zingle pursuant to an Order, and all updates, upgrades, improvements, modifications, enhancements, corrections, revisions, refinements and derivative works thereto.
All capitalized terms used in these General Terms and Conditions that are not defined herein shall have the meaning ascribed to them in the Order.
2. Usage Rights
2.1. Zingle shall: (i) make the Service available to Customer in accordance with, and during the Subscription Term stated in the Order in order to permit Authorized Users to access and use the Service solely for Customer’s own internal business purposes (which includes interacting with Consumers) as permitted by and subject to the terms of the Agreement and the Documentation.
2.2. Customer shall not sublicense, license, sell, lease, rent or otherwise make the Service available to third parties other than (i) Authorized Users who are using the Service in accordance with Customer’s authorized use thereof, and (ii) Consumers, solely for purposes of Communicating with Authorized Users. Customer shall be responsible for the acts and omissions of its Authorized Users as if they were the acts and omissions of Customer and shall not permit any unlawful use of the Service by a Consumer. Each Authorized User may not share or permit any other person to use their access or log in credentials, provided however, an Authorized User’s access rights may be transferred from one individual to another if the original Authorized User is removed from the Service, no longer requires, or is no longer permitted access to or use of the Service.
2.3. Zingle or its licensors own all right, title and interest in any and all copyrights, trademark rights, patent rights and other intellectual property or other rights in the Zingle Materials, and any improvements, design contributions or derivative works thereto. Except as otherwise agreed in writing and subject to the terms of this Agreement: (a) Zingle grants Customer a nonexclusive, nontransferable and non-sublicensable right, for the Subscription Term, to access and use the Zingle Materials as part of the Service and not separately therefrom; and (b) Customer grants Zingle a limited license to use the Customer Data in connection with providing Customer access to the Zingle Materials. Except for the limited rights expressly granted herein, the Agreement does not transfer from Zingle to Customer any proprietary right or interest in the Service or the Zingle Materials or from Customer to Zingle any proprietary rights in the Customer Data. All rights not expressly granted to Customer in the Agreement are reserved by Zingle and its licensors.
2.4. Customer shall not, shall ensure that its Authorized Users do not, and shall take all reasonable steps to ensure a Consumer is unable or, if not feasible, not permitted to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Zingle Materials or Account Information available to any third party (other than to a Consumer in accordance with the terms of this Agreement), (ii) upload to, or store within the Platform (and the Customer Data shall not contain) any Non-Public Personal Information, (iii) send via the Platform or store within the Platform any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful, discriminatory or tortious material, including material that is harmful to children or violates third party privacy rights, (iv) send via the Platform any unsolicited commercial or non-commercial communication, including any SMS message to a Consumer without having obtained any legally required consent in the manner required by law, or to a Consumer who has revoked consent, (v) send via the Platform, upload to the Platform, or store within the Platform any Malicious Code, (vi) attempt to gain unauthorized access to the Zingle Materials or their related systems or networks, (vii) reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Zingle Materials, or any part thereof, (viii) modify, translate, localize, adapt, create or prepare derivative works of, or create a patent based on the Zingle Materials or any part thereof, (ix) use the Zingle Materials to create or enhance a competitive offering or for any other purpose which is competitive to Zingle, (x) perform or fail to perform any act which would result in a misappropriation or infringement of Zingle’s intellectual property rights in the Zingle Materials, (xi) perform any act that could disable, overburden, or impair the proper working or appearance of the Zingle Materials, such as a denial of service attack or interference with Device operation, or (xii) interfere with or disrupt the integrity or performance of the Zingle Materials or any third party data contained on the Platform, or (xiii) make any use of the Service that violates any applicable local, state, national, international or foreign law or regulation.
2.5. Customer is responsible for all activities that occur in its account(s) and for all legal compliance in connection with the use of the Service by Customer and its Authorized Users and Consumers.
2.6. The Service may contain links to external Web sites (including embedded widgets or other means of access) and information provided on such external websites by Zingle partners and third-party service providers. Zingle shall not be responsible for the contents of any linked Web site. Customer is responsible for monitoring its use of the Service. Customer shall promptly report to Zingle any actual use in excess of the permitted Scope of Use, if any. Zingle shall be entitled to monitor Customer’s use of the Service to ensure Customer’s compliance with the Agreement and Zingle may immediately invoice, and Customer shall immediately pay, any fees for any usage in excess of the applicable Scope of Use. Customer agrees that such fees shall accrue from the date the excess use began. Customer shall not be entitled to any reduction in applicable fees as a result of any monitoring or audit revealing under-utilization of the Service by Customer. Subject to Article 11 of these General Terms and Conditions, Zingle may utilize the information concerning Customer’s use of the Service to improve Zingle products and services and to provide Customer with reports on its use of the Service.
2.7. Zingle may change or modify the Service at any time. Zingle shall not materially diminish the functionality of the Service during the Subscription Term. Zingle may provide optional new features for the Service through its regular upgrades, which Customer may use, at its sole discretion, subject to any additional terms to be agreed upon at such time. Consulting Services required to implement and configure optional features are not included in the subscription fees.
2.8. If Customer is granted access under the Agreement to a free (no fee) version of the Service, to the extent permitted by applicable law, Customer agrees that (i) Zingle has no obligation to provide any particular service level or support services; and (ii) Zingle may cease providing the Service at any time without notice. This Section 2.7 supersedes any conflicting term of the Agreement.
2.9. Zingle may offer and Customer may choose to accept access to functionality that is not generally available and not validated and quality assured in accordance with Zingle’s standard processes (“Beta Functionality”). Beta Functionality is described as such in the Documentation. Zingle may require Customer to accept additional terms to use Beta Functionality. Any production use of the Beta Functionality is at Customer’s sole risk. Zingle does not warrant the correctness and completeness of the Beta Functionality, and Zingle shall not be liable for errors or damages caused by the usage of the Beta Functionality.
2.10. Customer agrees that its purchase of subscription(s) for the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Zingle, including any roadmaps, with respect to future functionality or features.
3. Additional Responsibilities
3.1. Customer will, and will cause its Authorized Users and Consumers to, provide accurate Account Information when registering and to update any Account Information as necessary to keep it accurate.
3.2. Customer shall be responsible for entering its Customer Data into the Service and for its content, including without limitation the accuracy, quality, integrity, legality, reliability, and appropriateness thereof. Customer agrees that it has collected and shall maintain and handle all Customer Data in compliance with all applicable data privacy and protection laws, rules and regulations. Further, Customer is solely responsible for determining the suitability of the Service for Customer’s business and complying with any regulations, laws, or conventions applicable to the Customer Data and Customer’s use of the Service(s).
3.3. Customer shall (i) use industry standard best practices to prevent unauthorized access to, or use of, the Zingle Materials, and promptly notify Zingle of any such unauthorized access or use; (ii) determine the applicability of and comply with all applicable laws, regulations and use guidelines while using the Zingle Materials, including, without limitation, consumer protection laws, the Telephone Consumer Protection Act and its implementing regulations, the Telemarketing Sales Rule, and all state laws governing email and text message communications; (iii) provide the network connection, mobile service, carrier charges, and any other hardware and software necessary to use the Zingle Materials; and (iv) maintain commercially reasonable security standards for its and its Authorized Users and Consumers use of the Service.
4. Prices and Payment Terms
4.1. Fees. Customer shall pay to Zingle all Fees due hereunder within thirty (30) days of receipt of invoice. All fees not paid when due shall accrue interest at the lesser of a rate of 2% per month or the maximum rate allowed under applicable law, and in the case of unpaid fees for Services, may result in temporary suspension of Customer’s ability to access the Service until payment is made. Customer acknowledges that a purchase order is for administrative convenience only and that Zingle has the right to issue an invoice and collect payment without a corresponding purchase order. Except as expressly set forth in the Agreement, all purchases are non-cancelable and all fees are non-refundable. Customer shall have no right to withhold or reduce fees under the Agreement or set off any amount against fees owed for alleged defects in a Service.
4.2. Due Dates for Recurring Fees. Fees for the initial year of a Subscription Term are due upon the effective date of the applicable Order, and fees for subsequent terms (each subsequent term, a “Renewal Term”) will be invoiced in advance approximately sixty (60) days prior to the start of each Renewal Term, unless otherwise set forth in the Order. Any pricing changes applicable to a Renewal Term will be reflected on the initial invoice for the applicable Renewal Term.
4.3. Overages: If Customer exceeds its permitted usage in any month of a Subscription Term as specified in the Order Form, Zingle reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in Exhibit A. Customer will pay any overage fees monthly in arrears.
4.4. Customer may expand the Scope of Use during the Subscription Term or any Renewal Term by executing an addendum or additional Order, as applicable, which shall then become an integral part of the amended Order. Customer shall not be entitled to reduce the scope of use of the Service during a Subscription Term or Renewal Term.
4.5. Taxes. Fees imposed under the Agreement or under an Order shall not include taxes, including sales or use or similar taxes and Customer shall be responsible for all such taxes. Any applicable direct pay permits or valid tax-exempt certificates must be provided to Zingle prior to the execution of this Agreement. If Zingle is required to pay any taxes on Customer’s account or behalf or due to a failure of Customer to properly pay such amounts, Customer shall reimburse Zingle for such amounts. Customer agrees to indemnify Zingle against for any taxes and related costs paid or payable by Zingle attributable to the Services, other than taxes on Zingle’s income or assets.
4.6. Travel Expenses. Customer shall reimburse Zingle for all reasonable, pre-approved (by Customer in writing) and appropriately documented travel and related expenses incurred by Zingle in performing any support or other services for Customer under the Agreement.
5. Term, Termination and Termination Support
5.1. The term of the Agreement begins on the Effective Date set forth in the Order and shall continue in effect as described in the Order. Termination of an individual Order shall leave other Orders unaffected.
5.2. Notwithstanding the foregoing, a party may terminate the Agreement upon thirty (30) days written notice to the other party of such other party’s material breach of any provision of the Agreement, unless the breaching party has cured such breach during such thirty (30) day period. Except for termination in accordance with this Section 5.2 by Customer, termination will not relieve Customer from the obligation to pay Fees set forth in any Order terminated as a result that remain unpaid. For avoidance of doubt, Customer’s failure to pay Fees due for the Services shall be considered a material breach of the Agreement. Additionally, Zingle has the right to terminate this Agreement and any Order entered into hereunder with immediate effect if Customer’s usage violates applicable law or applicable terms of third parties that provide services to Customer under this Agreement, in which case Zingle shall provide a prorated refund of prepaid fees to Customer from the termination date.
5.3. Notwithstanding Zingle’s right to terminate as set forth in Section 5.2 above, Zingle may deactivate Customer’s user name(s) and password(s) and/or temporarily suspend access to the Service or a portion thereof: (i) if and to the extent Zingle reasonably determines and can substantiate that the continued use of the Service may result in harm to the Service (including the security of the systems used to provide the Service), other Zingle customers or the rights of third parties, upon prior written notice to Customer as the circumstances permit; (ii) thirty (30) days after Zingle gives Customer notice of Customer’s breach of any obligations, including non-payment of any Fees.
5.4. Suspension of Service: In addition to Zingle’s termination rights and other rights under this Agreement, Zingle reserves the right to suspend Customer’s access to the Service (and any related services), in whole or in part, without liability to Zingle and with immediate effect: (i) if Customer’s account is thirty (30) days or more overdue; (ii) if Customer exceeds or violates any use restrictions set forth in the applicable Order Form; or (iv) to prevent harm to the Service or other Zingle customers.
5.5. Upon the effective date of termination, Customer’s and all of its Authorized Users’ and Consumers’ access to the Service will be terminated.
5.6. Customer shall have the ability to access and download its Customer Data at any time during the Subscription Term or any Renewal Term, and form up to thirty (30) days following the termination thereof.
5.7. Articles 8, 9, 11 and this Section 5.6, shall survive the expiration or termination of the Agreement.
6.1. Both Zingle and Customer represent and warrant (i) it is financially solvent and has the ability to perform its obligations hereunder; and (ii) the person signing the Agreement and any other binding Order, document, certification, acknowledgement or similar in connection therewith is a duly authorized officer or representative with the authority to enter into and bind it to the terms and conditions in this Agreement or such other instrument.
6.2. Zingle represents and warrants: (i) it will use commercially reasonable efforts to ensure System Availability 24 hours a day, 7 days a week, (ii) the Service will substantially conform to the specifications stated in the Documentation; (iiI) the functionality of the Platform will not be materially decreased during a Subscription Term, and (iv) it uses appropriate physical, technical and administrative procedures to safeguard the information it collects. The foregoing warranty shall not apply to the extent: (a) the Service is not being used in accordance with the Agreement and/or any Documentation or the use for which it is permitted hereunder; or (b) any non-conformity with the warranty is caused by unauthorized third party products, content or service being accessed through the Service; or (c) the Service being used was provided for no fee or is a trial license of the Service; or (d) the non-conformity (1) cannot be replicated by Zingle using commercially reasonable efforts to do so, in accordance with industry practices, (2) was caused by misuse of the Service or by using the Service in a manner that is inconsistent with this Agreement, or (3) arose after or as a result of a modification or repair of the Zingle Materials by any person or party that is not expressly authorized to make such modification or repair (and Customer shall pay Zingle’s applicable hourly rates for any services required to remedy an error or reset the Service as a result of any Service interruption described in the foregoing clauses (1) to (3)). Customer’s sole and exclusive remedy, and Zingle’s entire liability, for breach of the warranty in this Section 6.2, shall be correction of the warranted non-conformity or, if Zingle fails to correct the warranted non-conformity after using reasonable commercial efforts, Customer may terminate access to the non-conforming Service and Zingle will refund all fees for the non-conforming Service for the remainder of the pre-paid term in which the non-conformity was identified, pro-rated from the date such non-conformity was first reported to Zingle.
6.3. Customer, on behalf of itself and any Affiliate using the Service, represents and warrants and covenants: (i) the Customer Data will not infringe on any copyright, patent, trade secret or other proprietary right held by any third party and it owns or otherwise has the right to grant the license to the Customer Data in this Agreement, (ii) it will not use or permit a use of the Zingle Materials in a manner that is contrary to its rights under this Agreement, that violates any law or that would reasonably be seen as obscene, defamatory, harassing, offensive or malicious, (iii) all Authorized Users, when using the Platform to send text messages, telephone messages, or email messages, will comply with all applicable federal, state, and local laws, regulations, and rules governing such communications, including, without limitation, the Telephone Consumer Protection Act (TCPA) and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, and state and local equivalents, and will use best practices, procedures and tools to ensure its Consumers comply with the foregoing; and (iv) when using the Platform, only interact with individuals to the extent permitted by applicable law and to the extent consent is required, the legally required consent has been obtained, including but without limitation, all legally required consent to interact with any individual using any phone number or email address provided to Zingle in connection with this Agreement; (vi) the Customer Data or its delivery to Zingle hereunder will not result in a breach of contract between Customer and any third party; (vi) to promptly notify Zingle of all requests made by any individuals to stop receiving communications from Zingle on its behalf.
6.4. Any party claiming breach of a warranty set forth in this Article 6 shall provide the other party with prompt written notice of such alleged breach, but in all cases within ninety (90) days of discovery of the facts and/or circumstances that gave or could reasonably have given rise to such alleged breach.
6.5. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF OR INTEGRATION WITH THE SERVICE, OR ANY CONSULTING SERVICES, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY SUCH SERVICE, SOFTWARE, HARDW ARE OR OTHER MATERIAL WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. WITHOUT LIMITING THE FOREGOING, (I) ANY TEMPLATES FOR COMMUNICATION PROVIDED BY ZINGLE ARE PROVIDED FOR CONVENIENCE ONLY; (II) CUSTOMER MAY NOT RELY UPON THE PROVISION OF SAMPLE LANGUAGE IN ANY TEMPLATE AS A REPRESENTATION THAT SUCH LANGUAGE SATISFIES ANY APPLICABLE LEGAL REQUIREMENTS AND SHOULD CONFER WITH ITS OWN COUNSEL AS TO WHETHER SUCH TEMPLATE IS SUFFICIENT FOR LEGAL PURPOSES; AND (III) CUSTOMER IS SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGES INCURRED BY ZINGLE AS A RESULT OF THE USE OF ANY SUCH TEMPLATE.
7. Third Party Claims
7.1. Zingle shall defend and hold harmless Customer and its Affiliates and its and their directors, officers, employees, agents, successors and assignees (the “Customer Indemnitees”) against claims brought against such Customer Indemnitee(s) by any third party alleging that Customer’s use of the Service, in accordance with the terms and conditions of the Agreement and the Documentation, constitutes a direct infringement or misappropriation of a patent claim, copyright, or trade secret rights in any country in which the Service is permitted to be used by the Customer and its Authorized Users and Consumers. Zingle will pay damages finally awarded against such Customer Indemnitee(s) (or the amount of any settlement entered into by Zingle or with its express written consent) with respect to final settlement of such claim, and will pay reasonable attorney’s fees in connection with such defense. This obligation of Zingle shall not apply if the alleged infringement or misappropriation results from use of the Service in conjunction with any other software or service not provided by Zingle or to free (no fee) or trial licenses of the Service. In the event a claim under this Section 7.1 is made or in Zingle’s reasonable opinion is likely to be made, Zingle may, at its sole option and expense: (i) procure for Customer the right to continue using the Service under the terms of the Agreement; or (ii) replace or modify the Service to be non-infringing without a material decrease in functionality. If Zingle provides written notice to Customer that the foregoing options are not reasonably available, Zingle or Customer may terminate the Agreement and Zingle shall refund all prepaid fees for the remainder of the term after the date of such termination.
7.2. Customer shall defend and hold harmless Zingle and its Affiliates and licensors and its and their directors, officers, employees, agents, successors and assignees (the “Zingle Indemnitees”) against claims brought against such Zingle Indemnitees by any third party arising from or related to (i) any use of the Service in violation of any applicable law or regulation; (ii) an allegation that the Customer Data or Customer’s use of the Service in violation of the Agreement violates, infringes or misappropriates the rights of a third party; or any breach or alleged breach of Section 6.3. Customer will pay damages finally awarded against Zingle (or the amount of any settlement entered into by Customer (or with its express written consent) with respect to final settlement of such claim, and will pay reasonable attorney’s fees in connection with such defense. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer and/or its Authorized Users or by the conduct of a third party using Customer’s access credentials.
7.3. Zingle shall indemnify and hold the Customer Indemnitees harmless against, and Customer shall indemnify and hold the Zingle Indemnitees harmless against, any claims, liabilities, damages, costs and expenses, including reasonable attorney’s fees, arising from a breach by the indemnifying party of its obligations under Article 3 or relating to tangible property damage, personal injury or death arising from the indemnifying party’s (or its employees or contractors) gross negligence or willful misconduct.
7.4. The obligations under this Article 7 are conditioned on (a) the party against whom a third party claim is brought timely notifying the other party in writing of any such claim, provided however that a party’s failure to provide or delay in providing such notice shall not relieve a party of its obligations under this Article 7 except to the extent such failure or delay prejudices the defense; (b) the party who is obligated hereunder to defend a claim having the right to fully control the defense of such claim; and (c) the party against whom a third party claim is brought reasonably cooperating in the defense of such claim. Any settlement of any claim shall not include a financial or specific performance obligation on or admission of liability by the party against whom the claim is brought, provided however that Zingle may settle any claim on a basis requiring Zingle to substitute for the Service any alternative substantially equivalent non-infringing services. The party against whom a third party claim is brought may appear, at its own expense, through counsel reasonably acceptable to the party obligated to defend claims hereunder. Neither party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation, that is prejudicial to the other party’s rights.
8. Limitation of Liability
8.1. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT WITH RESPECT TO CLAIMS FOR DIRECT DAMAGES TO TANGIBLE PROPERTY, DEATH OR BODILY INURY ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES OR LICENSORS) BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY UNDER THIS AGREEMENT: (A) FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES FOR THE APPLICABLE SERVICE PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO LIABLITY; AND (B) FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE OR FOR EXEMPLARY OR PUNITIVE DAMAGES.
8.2. The provisions of the Agreement allocate the risks between Zingle and Customer. The Fees agreed to thereby reflect this allocation of risk and the limitations of liability herein. The aforementioned liability limitations shall include any claims against employees of, subcontractors of, or any other persons authorized by, either party.
9.1. Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of the Agreement. Any reproduction of any Confidential Information of the other party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party (a) shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein “Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of the Agreement shall be subject to the protections afforded hereunder. If the receiving party is compelled by law or legal process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
9.2. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of the Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions.
9.3. Customer shall not disclose the terms and conditions of the Agreement or the pricing contained herein to any third party. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other.
Customer may provide, or Zingle may solicit, input regarding the Service, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Service or any other Zingle site, service or product, or input as to whether Customer believes Zingle’s development direction is consistent with Customer’s business and IT needs, the technology marketplace in general, and the like (collectively “Feedback”). Customer acknowledges and agrees that any information disclosed by Zingle during discussions related to Feedback shall be considered Zingle Confidential Information and shall be protected from disclosure in accordance with the terms of the Agreement. In order for Zingle to utilize such Feedback, Customer hereby grants to Zingle a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license, with the right to sublicense to Zingle’s licensees and customers, under Customer’s relevant intellectual property rights, to use, publish, and disclose such Feedback in any manner Zingle chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Zingle’s and its sublicensees’ products or services embodying Feedback in any manner and via any media Zingle chooses, without reference to the source. Zingle shall be entitled to use Feedback for any purpose without restriction or remuneration of any kind with respect to Customer and/or Customer’s representatives. Customer acknowledges that the information related to the Service disclosed by Zingle under the Agreement is only intended as possible strategies, developments, and functionalities of the Service and is not intended to be binding upon Zingle to any particular course of business, product strategy, and/or development.
11.1. It is the intent of the parties that in case any one or more of the provisions contained in the Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of the Agreement, and the Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
11.2. If either party should waive any breach of any provision of the Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
11.3. The Agreement or any Order or other instrument entered into thereunder or in connection therewith, may be signed in two counterparts, each of which shall be deemed an original and which shall together constitute one Order. Signatures sent by electronic means (facsimile or scanned and sent via e-mail, or signed by electronic signature service where legally permitted) shall be deemed original signatures.
11.4. The Service, Documentation and other Zingle Materials are subject to the export control laws of various countries, including without limitation the laws of the United States. Customer agrees that it will not submit the Service, Documentation or other Zingle Materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of Zingle, and will not export the Service, Documentation and other Zingle Materials to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Service, Documentation or other Zingle materials by Customer and its Authorized Users.
11.5. The Agreement and any claims arising out of or relating to the Agreement and its subject matter shall be governed by and construed under the laws of the State of California, without reference to its conflicts of law principles. All disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in San Diego County, California (“Selected Venue”) and each party hereby irrevocably and unconditionally consents to personal jurisdiction of the Selected Venue. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. Either party must initiate a cause of action for any claim(s) arising out of or relating to the Agreement and its subject matter within one (1) year from the date when such party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
11.6. All notices pursuant to the Agreement shall be in writing and shall be deemed duly given when delivered (certified or registered mail or by an overnight courier service with delivery receipt) to the respective executive offices of Zingle or Customer at the address first set forth in any Order directed to the General Counsel, or in the case of notices by Zingle relating to the operation of the Service, such notices, may, at Zingle’s option, be in the form of an electronic notice delivered by Zingle to the authorized administrator identified by Customer in the applicable Order or as otherwise agreed by the parties.
11.7. Any delay or nonperformance of any provision of the Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of the Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
11.8. This Agreement constitutes the complete and exclusive statement of the agreement between Zingle and Customer in connection with the parties’ business relationship related to the subject matter hereof, and all previous representations, discussions, and writings (including any confidentiality agreements) are merged in, and superseded by the Agreement and the parties disclaim any reliance on any such representations, discussions and writings. This Agreement may be modified only by a writing signed by both parties. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by one party to the other, and any additional terms and conditions in any such purchase order or other document shall have no force and effect, notwithstanding the non-furnishing party’s acceptance or execution of the purchase order or other document.
11.9. Customer may not, without Zingle’s prior written consent, assign, delegate, pledge or otherwise transfer the Agreement, or any of its rights or obligations under the Agreement, or any Zingle Materials or Zingle Confidential Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. Zingle may assign the Agreement to any of its Affiliates or to a successor in interest in the event of an acquisition of Zingle by way of merger, stock sale, exclusive license, asset sale or otherwise. Zingle may in its sole discretion sub-contract parts of the Service to third-parties.
11.10. The following order of precedence shall be applied in the event of conflict or inconsistency between the components of the Agreement: (i) the Order and any supplemental terms contained therein; (ii) any schedules or other supplements, exhibits and appendices included with or referenced by the Order; (iii) and these General Terms and Conditions.
11.11. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to the Agreement.
12. MODIFICATIONS TO AGREEMENT
12.1. Zingle may modify the terms and conditions of this Agreement (including Service pricing and plans) from time to time, with prior notice given to Customer by email or through the Service. If Customer has a Developer Plan or a Trial Plan, any modifications to the Agreement will become effective immediately. If Customer disagrees with such modifications, Customer’s exclusive remedy is to terminate this Agreement and cease use of the Service. If Customer has a Paid Plan, Customer must notify Zingle within thirty (30) days of notice of the modifications that Customer does not agree to such changes, and Zingle, in its sole discretion and as Customer’s exclusive remedy may either: (a) permit Customer to continue under the terms of this Agreement until expiration of the Subscription Term and thereafter the Agreement with modified terms will apply or (b) allow Customer to terminate this Agreement and Customer will receive a pro-rated refund of any fees Customer has pre-paid for the use of the Service for the applicable Subscription Term. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the modifications take effect constitutes Customer’s acceptance of the modifications to the Agreement.