TERMS OF SERVICE
Effective Date: May 17, 2021
THESE TERMS OF SERVICE (“Terms of Service”) constitutes the binding agreement between every person or entity that utilizes the ZenCase Application, as defined below. By utilizing the ZenCase Application, each User, Account Holder and Designated Consultant agree to be bound to these Terms of Service with Groundswell Productivity Solutions, LLC, a Florida limited liability company doing business as ZenCase (“ZenCase”). In consideration of the use of the ZenCase Application, each User, the Account Holder, Designated Consultant and ZenCase agree to the following:
. The following terms have the meaning as defined below:
Use and Access
- “Account” means the account in the ZenCase Application for the Account Holder’s organization.
- “Account Holder” means the person or entity that has a Subscription with ZenCase for use of the ZenCase Application.
- “Account Holder Administrator” means those persons who have been designated by the Account Holder to have the ability to enter into legally binding decisions and to enter into any agreements or modifications of existing agreements between ZenCase and the Account Holder.
- “Annual Subscription” means a Subscription for a designated number of the Account Holder’s Users to have access to utilize the ZenCase Application for a period of time which commences on the Subscription Start Date, and ends 365 days thereafter (except for leap years, in which case the Annual Subscription would terminate 366 days after the Subscription Start Date (or anniversary thereof for a renewal)).
- “Contributed Content” means any documents, spreadsheets, PowerPoint presentations, ZenKM templates, or other information in any format that is provided by a User to ZenCase for inclusion in the Groundswell Library.
- “Customer Data” means any data or information that is input by a User into the ZenCase Application, but excluding ZenCase Data.
- “Designated Consultant” means the person or entity that the Account Holder has engaged to assist with the implementation or to otherwise provide consulting services with respect to the ZenCase Application.
- “Documentation” means documents, webpages, videos, and other information provided by ZenCase with respect to the use of the ZenCase Application.
- “Force Majeure” has such meaning as provided in Section 11, below.
- “Groundswell Library” refers to the library of shared documents, forms, ZenKM knowledge templates, and other information, documents, spreadsheets, PowerPoints or data that is made available for the Users on the ZenCase Application.
- “Implementation Account” means an Account that is created in the ZenCase Application for purposes of validating that the data and information of an Account Holder is accurate, and to provide training to an Account Holder’s Users on how to utilize the ZenCase Application.
- “Initial Subscription Commencement Date” means the date that starts the first Subscription Period for any Account Holder.
- “Integration Partner” means a third-party application provider that the Account Holder has permitted to access and modify the Customer Data in their Account with such person or entity’s application.
- “Intellectual Property” means any: (i) copyrights and copyrightable works, whether registered or unregistered; (ii) trademarks, service marks, trade dress, logos, registered designs, trade and business names (including Internet domain names, corporate names, and e-mail address names), whether registered or unregistered; (iii) patents, patent applications, patent disclosures, mask works and inventions (whether patentable or not); (iv) trade secrets, know-how, data privacy rights, database rights, know-how, and rights in designs; and, (v) all other forms of intellectual property or proprietary rights, and derivative works thereof, in each case in every jurisdiction worldwide.
- “Monthly Subscription” means a Subscription to utilize the ZenCase Application for a one (1) month period, which will generally start on the first day of each calendar month, and end on the last day of each calendar month.
- “Renewal Date” means the day immediately following the last day of a Subscription Period.
- “Security Group” means the settings that are selected by the Account Holder Administrator to allow Users to create, view, update, delete, import, or export data or information into a particular Account.
- “SLA Credit” means a monetary credit that can be applied by an Account Holder to satisfy any Subscription Fees that may be due after a System Outage for the future use of the ZenCase Application.
- “Subscription” means the business terms which allow authorized Users of the Account Holder to access the ZenCase Application.
- “Subscription Agreement” means the written agreement between an Account Holder and ZenCase that provides the business terms upon which an Account Holder’s Users may access and utilize the ZenCase Application.
- “Subscription Fees” mean the fees that are due from an Account Holder to ZenCase for a Subscription to the ZenCase Application.
- “Subscription Period” means the time period beginning on the first day and ending on the last day of either a Monthly Subscription or an Annual Subscription; for clarity, the Subscription Period for a Monthly Subscription is a month, and the Subscription Period for an Annual Subscription is one year.
- “Subscription Term” means the time period starting on the Initial Subscription Commencement Date and ending on the Subscription Termination Date.
- “Subscription Termination Date” is the final date of a Subscription for the Account Holder to have access to the ZenCase Application.
- “System Outage” means that the ZenCase Application is unavailable for a reason other than Force Majeure.
- “Trial Account” means a temporary free Account that is provided to allow a Trial User to utilize the ZenCase Application on a temporary basis.
- “Trial Account Holder” means the person or entity that has an agreement with ZenCase for the use of a Trial Account.
- “Trial User” means a User that is utilizing a Trial Account of the ZenCase Application.
- “User” means any person or entity utilizing or accessing the ZenCase Application, including but not limited to any Trial User or any User that is authorized by the Account Holder to access the ZenCase Application.
- “ZenCase Application” means the web-based application, and all components thereof, including such portions of the web-based application that are downloaded and run locally on a User’s computer, which is made available to a User by ZenCase, including any software and related product documentation or data related to such application as well as any updates, revisions, replacements or modifications thereof that ZenCase may make available to a User and/or Account Holder from time to time.
- “ZenCase Data” means the data and information regarding how a User utilizes the ZenCase Application, including but not limited to any interactions that any User may have with the ZenCase Application, but excluding information that directly reports or displays Customer Data.
- “ZenCase Referral Program” means any program or incentive that ZenCase may offer from time to time to any Users to provide some form of consideration in exchange for Users either referring new prospective customers, Knowledge Groups, Associations, or Users to utilize the ZenCase Application.
- “ZenCase Related Parties” means ZenCase, as well as any subsidiaries and employees thereof.
Account Holder’s Rights, Responsibilities and Restrictions
- Grant of Rights. During the Term, and for so long as the Subscription Fees are paid and there is no breach of the Subscription Agreement, the Account Holder and its Users are granted a nonexclusive, nontransferable, limited right to access and use the ZenCase Application for their Account. The Account Holder is responsible for obtaining access to the Internet and the equipment necessary to use the ZenCase Application. All rights not expressly granted to the Account Holder herein are reserved to ZenCase.
- User Access. Users can access and use the ZenCase Application only by means of login credentials, such as a username and password, and only in accordance with the terms and other restrictions in these Terms of Service. Each User’s login credentials shall only be used by that User and shall not be shared with, or used by any other person, including other Users. The Account Holder shall be responsible for issuing User login credentials to such persons as the Account Holder determines in its sole discretion, in accordance with these Terms of Service. ZenCase is entitled to send emails to the User’s email address that was provided to ZenCase, including emails and correspondence from ZenCase that may be confidential in nature including but not limited to password reset instructions. If a User’s email address is compromised, then the User as well as the Account Holder agree to notify ZenCase as soon as reasonably practicable.
- Service Levels. ZenCase shall use commercially reasonable efforts to make The ZenCase Application available on a twenty-four hours per day, seven days per week basis during the Term, except for: (a) scheduled system back-up or other on-going maintenance as required and scheduled in advance by ZenCase; (b) any interruption, unavailability or outage caused by ZenCase’s Integration Partners; (c) any interruption, unavailability or outage of the Account Holder’s infrastructure or computing environment; or (d) for any unforeseen cause beyond ZenCase’s reasonable control, including Internet service provider or communications network failures, denial of service attacks or similar attacks, or any Force Majeure event (defined in Section 10, below). ZenCase will monitor performance indicators on the systems and network infrastructure (its own and that of third-party suppliers) in order to gauge the overall performance of ZenCase and will use commercially reasonable efforts to maintain uptime performance on a monthly basis of ninety-nine and one-half percent (99.5%). If ZenCase suffers a System Outage which makes it unavailable for less than 99.5% of a particular month, then the Account Holder will be entitled to an SLA Credit equal to the percentage of time for a particular month that there is a System Outage for the ZenCase Application up to a maximum amount of an SLA Credit of 100% for a particular month (which would occur if there was a System Outage of 10% or more of the time of a particular month). If the System Outage is caused by the Account Holder or its Users, then such Account Holder and/or its Users will not be entitled to any SLA Credit as a result of such System Outage.
- Integration Partners. Each Account Holder and each User is responsible for any Integration Partners that they allow to have access to the ZenCase Application. Each Account Holder and each User acknowledges that ZenCase will not be responsible for the use, modification, or potential disclosure by an Integration Partner of any Customer Data that may be accessed, modified or otherwise used by such Integration Partner.
- Trial Accounts. ZenCase may make available from time to time Trial Accounts to a Trial Account Holder so that such person or entity may test out the ZenCase Application to determine if its features and functionality would be suitable for the Trial Account Holder. Each Trial Account Holder and each Trial User understands that ZenCase may terminate access to any Trial Account at any time in its sole discretion, and each Trial Account Holder and each Trial User expressly recognizes that any information or data that they input into a Trial Account will be deleted by ZenCase when the Trial Account Holder and/or its Trial Users access to the Trial Account is terminated. Under no circumstances should any Trial Account Holder and/or any Trial User input any sensitive, proprietary, confidential, or personal information into any Trial Account, as Trial Accounts may have shared databases as well as shared document management systems with other Trial Accounts.
- Authorized Access. Each Account Holder acknowledges that: (a) ZenCase shall rely on the validity of any User’s login credentials, instruction or information that meets the ZenCase’s automated criteria or which is believed by ZenCase to be genuine; (b) ZenCase may assume a person entering a User’s login credentials is, in fact, that person; and (c) ZenCase may assume the latest email addresses and registration information for Users on file with the ZenCase Application are accurate and current. The Account Holder shall take reasonable steps to prevent unauthorized access to the ZenCase Application, including without limitation by protecting its passwords and other login information. In addition, the Account Holder agrees to assume full responsibility for ensuring that its Users abide by the terms of these Terms of Service, and with all applicable laws, rules, and regulations. The Account Holder shall notify ZenCase immediately of any known or suspected unauthorized use of the ZenCase Application or breach of its security and shall use best efforts to stop said breach.
- Acceptable Use. The Account Holder shall not: (a) use the ZenCase Application for service bureau or time-sharing purposes or in any other way commercially exploit the ZenCase Application, or allow third parties to commercially exploit the ZenCase Application; (b) provide passwords or other login information to any third party, or attempt to gain unauthorized access to the ZenCase Application; (c) modify, translate, adapt, alter, or make derivative works of the ZenCase Application; (d) modify, reverse engineer, adapt or otherwise tamper with the ZenCase Application or modify another website so as to falsely imply that it is associated with either the ZenCase Application or ZenCase; (e) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (g) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (h) interfere with or disrupt the integrity or performance of the ZenCase Application or the data contained therein; (i) share non-public ZenCase Application features or content with any third party; (j) access the ZenCase Application in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the ZenCase Application, or to copy any ideas, features, functions or graphics of the ZenCase Application; or (k) engage in web scraping or data scraping on or related to the ZenCase Application, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that ZenCase suspects any breach of the requirements of this section, ZenCase may suspend the Account Holder’s access to the ZenCase Application without advanced notice, in addition to such other remedies as ZenCase may have. The ZenCase Application is not required to take any action against the Account Holder or any User or other third party for violating this section or this Agreement, but the ZenCase Application is free to take any such action it sees fit. Each Account Holder, as well as each User, agrees to indemnify and hold the ZenCase harmless from any violation of the aforementioned provisions of these Terms of Service.
- Compliance with Laws. In its use of the ZenCase Application, each Account Holder and any Users shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
Intellectual Property and Feedback
- Ownership. The Account Holder shall exclusively own all right, title, and interest in and to Customer Data in the ZenCase Application. Each User that stores any Customer Data in the ZenCase Application expressly acknowledges that ZenCase is entitled to rely upon this provision should there be a dispute between any User and the Account Holder that provided access to the ZenCase Application for such User with respect to the ownership of any Customer Data; provided, however, that each Account Holder and any User that is given access to the ZenCase Application are free to enter into an agreement between such Account Holder and such User as relates to the Intellectual Property pertaining to any Customer Data between themselves with the caveat that ZenCase may assume that any and all Customer Data is owned by the Account Holder and not any particular User.
- Use of Customer Data. Unless it receives the Account Holder’s prior consent, ZenCase: (a) shall not access, process, or otherwise use Customer Data other than as necessary to ensure that the ZenCase Application is working properly; and (b) shall not grant any third-party access to Customer Data, except for the Account Holder’s Designated Consultant and Integration Partners that have been given Integration Partner Access to a particular Account by an Account Holder’s Authorized User. Notwithstanding the foregoing, ZenCase may disclose Customer Data as required by applicable law or by proper legal or governmental authority. ZenCase shall give an Account Holder prompt notice of any such legal or governmental demand and reasonably cooperate with the Account Holder in any effort to seek a protective order or otherwise to contest such required disclosure, at the Account Holder’s expense, prior to the disclosure of any Customer Data (except to the extent that applicable law would otherwise prohibit prior disclosure to such Account Holder).
- Risk of Exposure. ZenCase shall maintain and enforce reasonable technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of the Customer Data. The Account Holder recognizes and agrees, however, that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using ZenCase, the Account Holder assumes such risks.
- Data Configuration. The Account Holder will ensure that both the Account Holder and its Users are familiar with the use and operation of ZenCase. Following any initial implementation assistance by ZenCase, the Account Holder and its Users shall load the Customer Data and configure ZenCase, as needed, to operate the ZenCase Application in the Account Holder’s computing environment. The Account Holder, not ZenCase, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and right to use all Customer Data, and ZenCase shall not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store any Customer Data that is caused by the Account Holder or its Users, or the use or misuse of User login credentials by a third party. The Account Holder understands that they are responsible to review and verify the accuracy of information that is in any Implementation Account that ZenCase may make available, and that ZenCase is entitled to rely upon the verification by the Account Holder of the accuracy of information that is in any Implementation Account when migrating any data or information from an Implementation Account to the Account Holder’s Account. Additionally, the Account Holder understands that any data or other information that is input into an Implementation Account by its Users will not be saved or otherwise imported from the Implementation Account to the Account, as the Implementation Account is intended to be used to verify that any legacy data that will be migrated into the Account Holder’s Account is materially accurate, as well as to provide training for the Account Holder’s Users as a “sandbox” environment.
- Data Accuracy. ZenCase will have no responsibility or liability for the accuracy of data uploaded to the ZenCase Application by the Account Holder or its Users, including without limitation Customer Data and any other data uploaded by Users.
- Data Deletion. ZenCase may permanently erase Customer Data if the Account Holder’s account is delinquent, suspended, or terminated for 30 days or more, or 30 days after the Subscription Termination Date.
- Intellectual Property to ZenCase. ZenCase retains all right, title, and interest in and to the ZenCase Application, including without limitation all software used to provide ZenCase and all Documentation, graphics, user interfaces, logos, and trademarks reproduced through the ZenCase Application. This Agreement does not grant Any Account Holder or User any intellectual property license or rights in or to the ZenCase Application or any of its components. The Account Holder recognizes that ZenCase and its components are protected by copyright and other laws.
- Feedback. ZenCase has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that the Account Holder or Users provide to ZenCase, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict ZenCase’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting the Account Holder or its Users. Notwithstanding the provisions dealing with Confidentiality, below, Feedback will not be considered Confidential Information. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of ZenCase’s products or services.
- Use of Content from the Groundswell Library. The content that is provided in the Groundswell Library is for the limited use of authorized Users of any Account Holder. The redistribution, reselling, relicensing, or other commercial use or distribution of any content from the Groundswell Library is prohibited; provided, however, that content from the Groundswell Library may be used in the ordinary course of business in the practice of law by an Account Holder and/or User, subject to the limitations provided in these Terms of Service. Each Account Holder and User expressly acknowledge and understand that the content in the Groundswell Library has been contributed from numerous authors and sources, and ZenCase is not responsible for any such content in the Groundswell Library. Specifically, ZenCase does not guarantee that such content from the Groundswell Library does not infringe upon any Intellectual Property rights of any third party. ZenCase cannot ensure that the quality of any content within the Groundswell Library is either accurate or meets the appropriate legal standard, as each Account Holder and/or User that utilizes any content from the Groundswell Library must independently verify the accuracy, appropriateness and quality of any such Groundswell Library content.
- Contributed Content. ZenCase accepts Contributed Content to the Groundswell Library from Account Holders, Users, as well as third parties. Anyone that delivers Contributed Content to ZenCase to be included in the Groundswell Library represents and warrants to ZenCase and agrees that: (i) the Contributed Content does not infringe upon any Intellectual Property rights of any third party; (ii) the person or entity delivering such Contributed Content has a legal right to contribute such content; (iii) ZenCase has a nonexclusive, nonassessable license to include such Contributed Content in the Groundswell Library, and ZenCase may sublicense such Contributed Content to any Account Holders, Users and third parties as ZenCase may choose in its sole discretion; and, (iv) such party will indemnify and hold ZenCase harmless should ZenCase be the subject of any lawsuit or other action from any third party that claims that the use or sublicensing of the Contributed Content infringes upon their Intellectual Property rights.
- Subscription Fees. The Account Holder shall pay ZenCase in advance for the Subscription Fees quoted to the Account Holder by ZenCase for the right to access and use the ZenCase Application. Any future Subscription Fees shall be at ZenCase’s then-published rates or as otherwise agreed by the parties. All payment obligations for Subscription Fees are non-cancelable and all amounts paid are nonrefundable.
- Taxes. Prices quoted do not include, and the Account Holder shall pay, any and all applicable taxes, including without limitation, sales, use, gross receipts, value-added, GST, personal property, or other tax (including interest and penalties imposed thereon) on the transactions contemplated herein, other than taxes based on the net income or profits of ZenCase.
- Late Payment, Suspension. The Account Holder may not withhold or “setoff” any amounts due hereunder. In addition to any other legal remedies, ZenCase reserves the right to suspend or terminate the Account Holder’s access to ZenCase until all amounts due are paid in full.
- Pricing Terms. All prices are stated and payable in U.S. Dollars. All pricing terms are confidential, and the Account Holder agrees not to disclose them to any third party.
. For purposes of this section, a party receiving Confidential Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Disclosing Party.”
Return of Confidential Information
- Confidential Information. “Confidential Information” means all financial, technical, strategic, marketing, and other information relating to the Disclosing Party or its actual or prospective business, products, or technology that may be, or has been, furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from the Disclosing Party, whether disclosed orally or in writing or electronically or some other form, and shall include without limitation the terms and conditions and pricing information of this Agreement, as well as ZenCase’s Documentation, source code, translations, compilations, implementation methodologies, partial copies, and derivative works. Notwithstanding the foregoing, Confidential Information does not include information that: (1) is or subsequently becomes publicly available (through no fault of the Recipient); (2) the Recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the Disclosing Party’s Confidential Information, as evidenced by written documentation by the Recipient; or (4) is received from a third party that is not obligated to keep it confidential.
- Non-Disclosure. Upon receipt of Confidential Information, the Recipient shall do the following:
- Use at least the same degree of care that it uses with respect to its own confidential information, but in no event less than a reasonable degree of care to avoid disclosure, publication, or dissemination of the other party’s Confidential Information;
- Disclose Confidential Information only to its personnel who have a need to know;
- Disclose Confidential Information only to third parties who have entered into an appropriate confidential disclosure agreement with the Recipient, prior to any disclosure of Confidential Information, and to whom such disclosure has been previously authorized in writing by the Disclosing Party; and,
- Promptly report any loss of any Confidential Information to the Disclosing Party.
. Upon the written request of the Disclosing Party or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Disclosing Party) all Confidential Information of Disclosing Party in its possession, custody, or control and cease all further use thereof.
. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Disclosing Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without the necessity of posting bond to prevent any actual or threatened violation of such provisions.
. The provisions of this Section shall survive termination of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE ZENCASE APPLICATION IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND ZENCASE EXPRESSLY DISCLAIMS, AND THE ACCOUNT HOLDER EXPRESSLY WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OR ARISING BY CUSTOM OR TRADE USAGE, AND WHETHER RELATING TO COMPATIBILITY, SECURITY, AND/OR FREEDOM FROM VIRUSES, OR ANY OTHER WARRANTY, AND SPECIFICALLY, ZENCASE MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY.
Discontinuation of Use Exclusive Remedy.
IF THE ACCOUNT HOLDER IS DISSATISFIED WITH ANY ASPECT OF ZENCASE OR WITH THIS AGREEMENT, THE ACCOUNT HOLDER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF ZENCASE.
. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL VENDOR AND ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE, OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF ZENCASE HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
. TO THE EXTENT NOT PROHIBITED BY LAW, AT NO TIME SHALL THE CUMULATIVE LIABILITY OF ZENCASE FOR ALL CLAIMS ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT IN ANY WAY, UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ALL SUBSCRIPTION FEES PAID TO ZENCASE UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE MOST RECENT CLAIM.
. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY REMEDIES PROVIDED. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF ZENCASE AND THEY REPRESENT A NEGOTIATED AND AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.
Limitation of Liability
. The Account Holder shall defend, indemnify, and hold harmless ZenCase and the ZenCase’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns, against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to the Account Holder’s alleged or actual use of, misuse of, or failure to use ZenCase, including without limitation: (a) claims by Users or by the Account Holder’s employees, as well as by the Account Holder’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to ZenCase through the Account Holder’s account, including without limitation by Customer Data; and (d) claims that use of ZenCase through the Account Holder’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to ZenCase’s negligence. The Account Holder’s obligations set forth in this section include retention and payment of attorney’s and payment of court costs, as well as settlement at the Account Holder’s expense and payment of judgments. ZenCase will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
. ZenCase shall not be in default of this Agreement if prevented from performing any obligation for any reason beyond its reasonable control, including without limitation, governmental laws and regulations, terrorist acts, acts of God, calamities, floods, and storms, act of public authority, injunction, war, embargo, strike, lock out, failure or delay of Third Party Partner, supplier or carrier, failure of the Internet, telecommunications service or public utility, casualty, or natural disaster, or any other cause, circumstance or condition, whether pre-existing or supervening, that is beyond ZenCase’s reasonable control. To the extent failure or delay in performance is caused by such a cause, ZenCase shall be excused from performance under this Agreement for so long as such circumstance continues to prevent performance.
Term and Termination
.The Account Holder can agree to either a Monthly Subscription or an Annual Subscription per User to use the ZenCase Application for each authorized User. After the initial Monthly Subscription or Annual Subscription, the Subscription will renew for the same Subscription Period and the same number of Users as the prior Subscription Period unless either party provides a written notice of nonrenwal to the other party prior to the Renewal Date. The Account Holder may increase the number of Users that have a Subscription to access the ZenCase Application at any time, but an Account Holder may only decrease the number of Users that have a Subscription to the ZenCase Application at the end of the respective Subscription Period for such User(s).
Effects of Termination
. Upon termination of this Agreement, the Account Holder shall cease all use of ZenCase and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) the sections captioned “Intellectual Property and Feedback”, “Confidentiality”, “Warranty Disclaimers”, “Indemnification”, and “Limitation of Liability”; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
Delivery and Destruction of Customer Data
. In the event this Agreement is terminated, ZenCase will make available to the Account Holder the Customer Data within 30 days of termination if the Account Holder so requests in writing at the time of termination. The Account Holder agrees and acknowledges that ZenCase has no obligation to retain the Customer Data beyond 30 days after the Subscription Termination Date. ZenCase may delete such Customer Data after the thirty-day period following Subscription Termination Date if the Account Holder does not request a copy of the Customer Data. In the event of termination due to the Account Holder’s breach of these Terms of Service, ZenCase may apply a reasonable time and materials fee to make available to the Account Holder a copy of the Customer Data.
. ZenCase may provide the ability to integrate ZenCase with third party products and services that the Account Holder and Users may use at their option and risk. Access to and use of any third-party products or Integration Partners and services are subject to the separate terms and conditions required by the providers of the third-party products and services. The Account Holder agrees that ZenCase has no liability arising from the Account Holder’s use of any integrations or arising from the third-party products and services. ZenCase can modify or cancel the integrations at any time without notice. If the providers of third-party products or services cease to make their products or services available on reasonable terms, ZenCase may cease providing any such third-party products or services without liability or entitling the Account Holder to any refund, credit, or other compensation.
. This Agreement constitutes a complete and exclusive final written expression of the terms of agreement between the parties regarding the subject matter hereof. It supersedes all earlier and contemporaneous agreements, understandings and negotiations concerning the subject matter. In the event of any conflict between this Agreement and any other agreement(s), this Agreement shall control.
. There will be no modification to this Agreement unless it is in writing signed by duly authorized representatives of each party. Any representations, promises, warranties or statements made by either party that differ in any way from the terms of this Agreement will not be binding on either party and will be void unless made in writing and signed by a duly authorized representative of each party.
Assignment or Change in Control
. This Agreement may not be assigned by either party without the prior written approval of the other party, but may be assigned without consent in the event of a merger or reorganization in which the surviving entity owns or controls more than 50% of the acquired party and agrees in writing to assume the obligations under this Agreement. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of the Account Holder that results, or would result, in a direct competitor of ZenCase directly or indirectly owning or controlling 50% or more of the Account Holder shall entitle ZenCase to terminate this Agreement for cause immediately upon written notice.
Security, No Conflicts
. Each party agrees to inform the other of any information made available to the other party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. Each party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the party or create any conflict of interest and shall promptly notify the other party if any such conflict arises.
. The construction and performance of this Agreement shall be governed by the substantive laws of the United Stated and the laws of the State of Florida, without regard to its conflicts of laws provisions. Any action under or concerning this Agreement shall be brought exclusively in the state or federal courts of Duval County, Florida USA. The Parties irrevocably agree and consent that said forum is convenient and has jurisdiction to hear and decide any such action. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any claim by one Party against the other Party must be brought within three years after it arose, or be barred.
. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.