ZenCharts™ Subscription License Terms
Updated August 1, 2022
These ZenCharts™ Subscription License Terms (the “Agreement”) is a binding agreement by and between Lightning Step Technologies, LLC DBA ZenCharts (“Licensor” or “ZenCharts”), and the customer (“Customer”) listed on any order form, purchase order or other similar document mutually agreed by the parties (e.g., when signed if a physical document, or when entered into online via a Licensor controlled website or app online) (collectively, each, an “Order Form”), and is effective as of the date on the initial Order Form between the parties (the “Effective Date”). These SaaS Subscription License Terms together with any Order Form(s), are collectively, referred to as the “Agreement”.
WHEREAS, Licensor develops and licenses access to the hosted software application subscription service(s) as described on the applicable Order Form and as further described more fully herein (collectively, the “Service”); and WHEREAS, Customer would like to subscribe to and access the Service;
NOW THEREFORE, in consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and intending to be legally bound hereby, the parties do hereby agree as follows:
- Service License Grant.Subject to the terms and conditions of this Agreement, Licensor hereby grants to Customer a limited, nonexclusive, non-transferable license to access and use the Service during the Term, solely by the number of authorized users as set forth on the applicable Order Form, and solely for internal and non-commercial purposes. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and manuals (collectively, the “Documentation”).
- Consulting Services. Consulting Services (as defined in Section 4) may be provided as described in Section 4.
- Telehealth Services. Telehealth Services (as defined in Section 5) may be provided as described in Section 5.
- Billing and Claims Management Services. Billing and Claims Management Services (as defined in Section 6) may be provided as described in Section 6.
- Service Levels. Licensor shall provide the Services Levels set forth on Exhibit A attached hereto and made a part hereof.
- Proprietary Rights.
- Customer Data. Licensor acknowledges and agrees that Customer shall own all title to and ownership of the Customer Data (defined below) and that Licensor shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with Licensor’s performance hereunder and as otherwise expressly permitted herein. As used herein, “Customer Data” shall mean any proprietary raw data owned by Customer independent of this Agreement, which Customer may input into the Service. Customer Data expressly excludes any data to the extent processed by, or resulting as an output of, the Service, which shall be considered Licensor Data (defined below). If and to the extent necessary for operation of the Service by Customer, Customer hereby grants to Licensor a limited, non-exclusive license, during the Term, to use the Customer Data within the Service in order to perform its obligations herein.
- Licensor Technology. Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under Section 1, Licensor owns and shall at all times retain all rights in and to the Services, including without limitation, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Service, software and the Documentation, and all Licensor Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Licensor Technology”). Subject only to Section 2.1 above, Licensor shall own all rights to (i) any data input into the Services by or on behalf of Licensor, and (ii) any aggregated and anonymized data extracted or derived from the Service, including all aggregated and anonymized usage data, statistical data, transactional data, metadata, market data and other aggregated and anonymized data collected from user data and files (collectively, “Licensor Data”). Without limiting the generality of the foregoing, Licensor reserves the right to create and market public indexes, analysis or insights created from such data. Nothing contained in this Agreement or in the parties’ performance or failure to perform hereunder, or in any Services provided by Licensor, shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any such rights in or to any Licensor Technology.
- Fees; Payment Terms.
Customer shall pay to Licensor in immediately available US dollars, the applicable subscription and other fees in the amounts and timing as specified in any Order Form (the “Fees”). If no payment schedule is specified in the applicable Order Form, then all amounts are due and payable upon Customer’s execution of this Agreement. The Fees, and any fees for any additional services, equipment or subscription extensions which may be purchased hereunder, are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Customer. Unless otherwise stated in this Agreement, invoices will be stated in United States dollars and shall be due and payable within 30 days following invoice date unless otherwise specified herein or agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of, 1.5% per month or the maximum amount allowed by law, with respect to the overdue amount. Licensor may not raise the Fees during the Initial Term unless otherwise mutually agreed (or if the Customer elects to subscribe to additional Services or purchase additional equipment or consulting) but does reserve the right to increase the Fees at the end of the Initial Term or during any Renewal Term, by delivering written notice to Customer. During any free trial period, if any, Customer will still be responsible for any purchases and surcharges incurred using your account.
- Consulting Services.
If and as mutually agreed by the parties on any Order Form or in a subsequent written and executed Statement of Work (“SOW”) to be attached hereto and made a part hereof, Licensor may also provide certain consulting services or other similar professional services (“Consulting Services”) in addition to the subscription Service. Consulting Services may include, without limitation, installation services and/or training. Unless otherwise mutually agreed in the applicable SOW or Order Form, all Consulting Services will be paid for and performed on a time and materials basis, at Licensor’s standard hourly rates. Customer shall reimburse Licensor for actual and reasonable travel and travelrelated expenses incurred by Licensor in connection with the Services or any Consulting Services provided hereunder.
- Telehealth Services.
If and as mutually agreed to by the parties on any Order Form or in a subsequent written and executed SOW to be attached hereto and made a part hereof, Licensor may also purchase a license to use ZenCharts’ telehealth services platform (“Telehealth Services”) in addition to the subscription Service. ZenCharts provides the technology platform that connects healthcare providers with their patients and facilitates the scheduling and payment of such healthcare services on behalf of both the patient and the provider. The Telehealth Services offering will incorporate network and software security protocols to protect the privacy and security of health information and will include measures to safeguard the data to ensure its integrity against intentional or unintentional corruption.
- Billing and Claims Management Services.
If and as mutually agreed to by the parties on any Order Form or in a subsequent written and executed SOW to be attached hereto and made a part hereof, Licensor may also purchase a license to use ZenCharts’ proprietary billing and claims management platform (“Billing and Claims Management Services”) to streamline the Licensor’s charge capture, payor follow-up and recovery, and claims management from submission to payment.
- Medical Disclaimer.
To the extent that Licensor purchases a license to use the Telehealth Services platform, Licensor fully acknowledges and accepts that any and all telehealth services are provided by the applicable healthcare provider, not ZenCharts. Licensor further agrees that ZenCharts has no direct control over the appropriateness, accuracy, quality, timeliness, scope, price or risks of or associated with any provision of healthcare services via the telehealth platform. All decisions related to the provision of healthcare Services are the sole responsibility of the individual healthcare Provider. LICENSOR IS SOLELY RESPONSIBLE FOR OBTAINING ANY AND ALL NECESSARY PATIENT CONSENTS FOR THE PROVISION OF ALL HEALTHCARE SERVICES, INCLUDING HEALTHCARE SERVICES PROVIDED VIA THE TELEHEALTH PLATFORM, AND FOR THE COLLECTION AND DISCLOSURE OF ANY PATIENT PERSONALLY IDENTIFIABLE INFORMATION AND PROTECTED HEALTH INFORMATION. FOR PURPOSES OF THESE TERMS OF SERVICE “HEALTHCARE SERVICES” ARE DEFINED AS THE FURNISHING OF MEDICINE, MEDICAL OR SURGICAL TREATMENT, CLINICAL AND THERAPEUTIC SERVICES, THE DISPENSING OF DRUGS OR MEDICAL DEVICES OR ANY OTHER CLINICAL SERVICES PROVIDED TO AN INDIVIDUAL VIA THE TELEHEALTH PLATFORM. THUS, LICENSOR AGREES TO RELEASE ZENCHARTS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES AND LIABILITIES, OF ANY TYPE AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PROVISION OF HEALTHCARE SERVICES (INCLUDING ANY INJURIES OR DISABILITY ARISING THEREFROM) TO INDIVIDUALS VIA ZENCHART’S SERVICE OR TELEHEALTH PLATFORM.
- Term; Termination.
The initial term length shall be as specified the initial Order Form; provided that if no initial term length is specified in any Order Form then the initial term shall be one year (the “Initial Term”). After such initial term, this Agreement shall automatically be renewed for successive one-year renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party opts out by giving written notice to the other party at least 30 days prior to the end of the then current term. Either party may terminate this Agreement (a) upon 30 days prior written notice if the other party has materially breached this Agreement and has not cured the same within the 30 day notice period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Upon any termination of this Agreement, (a) Customer shall promptly: (i) discontinue all use of the Service and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation, and return to Licensor or destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to Licensor that Customer has complied with these requirements; (c) Licensor shall disengage Customer’s access to the Service, and (d) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Any payment obligations of Customer, provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive including Sections 2 – 3 and Sections 7 – 14.
Licensor warrants to Customer that, during the Term, the Service shall operate in substantial conformity with the Documentation, and that the Consulting Services, if any, will be performed in a professional and workmanlike manner. The foregoing warranty shall not apply if the non-conformance is not replicable or results from third-party systems or components used by Customer to access the Service, including any lack of interoperability with such third-party systems or components. Licensor does not warrant that operation of or access to the Service will be uninterrupted or error-free, or that all reported defects will be corrected. Licensor’s sole liability and Customer’s sole and exclusive remedy for any breach of the limited warranty set forth above shall be, in Licensor’s sole discretion, to (i) use commercially reasonable efforts to provide an errorcorrection or work-around for the reported non-conformity, or (ii) terminate this Agreement and refund to Customer the that portion of any prepaid Fee associated with any unused balance of the Term. Licensor shall have no obligation with respect to a warranty claim unless notified of such claim promptly and within the Term. Customer is solely responsible for maintaining its own connectivity and connection to the Service via any necessary hardware, software, telecommunications and internet connections, at its own cost and expense, and Licensor is not responsible for any interruptions thereto, and Customer expressly agrees that Licensor shall not be liable in any manner for any interruption in or failure of access to the Service, nor shall any such interruption or failure of access be deemed a breach of the terms of this Agreement. If and to the extent the Service includes, integrates or links to any third-party content, data or software (“Third-Party Content”), Customer acknowledges and agrees that (a) Licensor is not responsible for any Third-Party Content and it is provided as is; and (b) any Third-Party Content may be subject to additional terms and conditions (including applicable terms of use, privacy policies, end user license terms, etc.), for which Customer shall be responsible for agreeing to and complying with. Without limiting the generality of the foregoing, Licensor is not responsible for end user error, errors in inputs or for errors in any Customer Data; Licensor does not independently verify the truthfulness or accuracy of any data or content input into the Service and is not responsible for the fraud, misrepresentation, negligence or misconduct of any end user or other third-party. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control. We do not warrant that the Services will be uninterrupted or error free; nor do we make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, THE SERVICE IS PROVIDED “AS IS”. LICENSOR EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES IMPLIED BY USAGE OF TRADE OR CUSTOM OF DEALING AND DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.
- Third-Party Claim Defense and Indemnification.
- Intellectual Property Infringement. Licensor shall (a) indemnify and hold Customer harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of any third-party claim that the Service infringes a United States patent, copyright, trademark, or other US intellectual property right of such third-party, and (b) pay directly or indemnify Customer with respect to any judgment or settlement amount awarded in connection with such claim. The foregoing obligations are contingent upon Customer providing Licensor with: (i) prompt notice of such claim (and in any event notice in sufficient time for Licensor to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by Licensor at Licensor’s expense. If Customer’s use of the Service is, or in Licensor’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Licensor may: (x) substitute for the infringing element of the Service functionally similar software; (y) procure for Customer the right to continue using the Service; or, (z) terminate this Agreement and refund to Customer that portion of any prepaid Service Fee associated with any unused portion of the Term. The foregoing defense and indemnification obligations of Licensor shall not apply to the extent the alleged infringement arises out of the alteration or modification of the Services, use or combination of the Service with other non-Licensor products, services, hardware, software or processes, or any unauthorized use of the Service. In addition, Licensor’s obligations and liabilities under this Section shall be governed by the limitations on liability set forth in Section 8 below and shall be capped at and included within any calculation of direct damages under that Section. THIS SECTION 10 SETS FORTH LICENSOR’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SERVICE, OR ANY CONSULTING SERVICES.
- Customer Indemnification Obligations. Customer shall indemnify and hold Licensor harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of (i) any breach by Customer of this Agreement, including any representation, warranty or obligation herein; (ii) the Customer Data or any other content, data or other materials input into the Service, or otherwise provided, by or on behalf of Customer; (iii) any actual or alleged noncompliance by Customer with applicable laws and regulations; (iv) Customer’s actual or alleged violation of third-party privacy rights, including without limitation any breach of the scope of the license granted herein; or (v) Customer’s violation of Licensor’s intellectual property rights, including without limitation any violation of Sections 2, 10 or 12. Do NOT use ZenCharts software to collect and store credit card numbers. Credit card numbers must be stored pursuant to PCI compliance guidelines, and ZenCharts is not PCI compliant.
- Limitation of Damages.
EXCEPT FOR THE EXPRESS INDEMNIFICATION OBLIGATIONS HEREIN, AND EXCEPT FOR BREACHES OF SECTIONS 2, 10 OR 12 HEREOF, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SERVICE AND LICENSE FEES PAID BY CUSTOMER DURING THE TERM (IN ADDITION TO ANY FEES PAID BY CUSTOMER). ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN 12 MONTHS FOLLOWING THE EVENT GIVING RISE TO THE SAME. ALTHOUGH INFORMATION THAT USERS SUBMIT MAY BE PASSWORD PROTECTED, LICENSOR DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SERVICE AND CUSTOMER AGREES TO ASSUME THE SECURITY RISK FOR ANY INFORMATION, DATA OR CONTENT IT PROVIDES THROUGH THE SERVICE. Customer is responsible for all use of the Services AND by all end users, including, without limitation, as applicable, any employees, agents and customers. Customer is responsible for communicating the terms and limitations in this Agreement to any and all such end users, INCLUDING WITHOUT LIMITATION, ANY WARRANTY LIMITATIONS AND ANY LIMITS ON LICENSOR’S LIABILITY. ANY USE OF THE SERVICES BY ANY PARTY, INCLUDING CUSTOMER, IN ANY HIGH RISK APPLICATION (AS DEFINED BELOW) IS DONE AT THE USER’S OWN RISK, WITHOUT ANY WARRANTY. AS USED HEREIN, A “HIGH RISK APPLICATION” IS ANY USE WHERE THE FAILURE OF THE SERVICE COULD CAUSE SERIOUS RISK, INCLUDING RISK OF INJURY TO PERSONS OR PROPERTY, OR A LIFETHREATENING SITUATION, INCLUDING BUT NOT LIMITED TO, MEDICAL, NUCLEAR, AVIATION, NAVIGATION, EMERGENCY SERVICES, EMERGENCY WEATHER ALERTS, OR MILITARY APPLICATIONS. Licensor is not, directly or indirectly, via the Services, or otherwise, providing any medical, legal, financial, or other advice subject to regulatory oversight, or acting as a doctor, lawyer, broker, insurance agent or broker or other regulated entity. Customer may use the Services for informational purposes only, as an aid, but only as one information source among many, and not as the sole basis for making any decisions; Customer must use proper due diligence and use its own business judgment when making any decisions based on any information, analytics or reports derived from the Services.
- Confidential Information. Each party acknowledges that by reason of the relationship created between the parties by this Agreement, it may have access to certain non-public information of substantial value concerning the other party’s business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third-parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt, the terms of this Agreement, and any performance, warranty and like information relating to the Service (by whomsoever generated or communicated) will be considered Confidential Information of Licensor. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third-party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge through no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third-party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party.
- Return of Confidential Information. Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this Section.
- Each party acknowledges that any breach of any of its obligations with respect to the other party’s Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity. Licensor acknowledges and agrees that from time to time during the term of this Agreement, it may be exposed to or have access to Protected Health Information (“PHI”) as defined by the Health Insurance Portability and Accountability Act of 1996 45 CFR Parts 160 and 164 (“HIPAA”). Protection of PHI will be governed by the Business Associate Agreement (the “Business Associate Agreement” or “BAA”) between the parties which is available here and, subject to the terms of the BAA, Licensor acknowledges that any such PHI shall be considered Confidential Information of Customer and will not use or further disclose PHI except as expressly permitted therein or as necessary to perform the Services.
- License Restrictions.
- General Restrictions. Customer shall not, and shall not attempt to (and shall not authorize or allow any third-party to or attempt to): (a) download or otherwise obtain a copy of the Service software or any software in any form; (b) reverse engineer or otherwise derive the source code of the Service or software or otherwise modify, reverse compile, disassemble, or translate the Service, or software or create any derivative works thereof; or (c) use the Service on behalf of any third-party or for any purpose other than as described in this Agreement; (d) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Service or use it as a service bureau; (e) post, send, process or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material violating of third-party rights; (f) post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or attempt to gain unauthorized access to the Service or related systems or networks; (h) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the IP Rights and/or Licensor’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the software or on any copies made in accordance with this Agreement; (i) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the intellectual property rights and/or Licensor’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Service, or Documentation, or on any copies made in accordance with this Agreement; (j) use, or authorize or permit the use of, the Service except as expressly permitted herein; (k) use the Service to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity which breaches the rights of any third-party. The Service may be used only by Customer (i) for its internal business purposes and only for the direct benefit of Customer; (ii) only by the number of persons for whom a license fee has been paid, and all such use may only be by those persons using the Service for the benefit of Customer in the course and scope of their employment, subject to the terms hereof; (iii) only in its original form without alteration or combination with other products, services or software except as expressly authorized in any applicable Documentation; and (iv) in compliance with all applicable laws, rules, regulations and industry standards, and in compliance with all Documentation and instructions provided by Licensor. In order to access some features of the Service, Customer may have to register or create an account. Customer may never use another’s account without permission. Customer is solely responsible for the activity that occurs on its account, for keeping its account password secure, and for notifying Licensor immediately of any breach of security or unauthorized use of its account. Customer agrees not to circumvent, disable or otherwise interfere with security-related features of the Service, or features that prevent or restrict use or copying of any content or enforce limitations on use of the Service, or the content therein. To the extent the Service allows uploading or posting of content or data, you will ensure that any content or data posted by or on behalf of Customer is not inappropriate, illegal, or in violation of any third-party rights.
- Evaluation License. If the Service is licensed or leased on an evaluation trial basis, the term of such license or lease is thirty (30) days from the earlier of installation (if applicable) or first use unless a longer period is specified in writing, after which time the evaluation license ceases. Evaluation use of the Service is intended solely for Customer to determine the compatibility of the Service with Customer’s business needs, and only to be used in a non-production test environment. Licensor has no obligation to provide support, maintenance, upgrades, modifications or new releases during the evaluation period and the service level commitments provided for elsewhere in this Agreement shall not apply, and any Service provided for beta and/or evaluation purposes is provided “as is” and without any warranties, notwithstanding anything to the contrary herein.
- Third-Party Services and APIs. The Services may integrate and/or interact with third-party services, such as via APIs or browser extensions. For example, the Services may leverage APIs from third-parties, and/or rely on third-party browser extensions, and Licensor has no affiliation, association, endorsement, or sponsorship by any other third-party services with which it integrates or interacts from time to time (collectively, “Third-Party Services”). Licensor makes no claim, representation or warranty of any kind, type or nature concerning any Third-Party Services, nor Customer’s or any end user’s use of or compliance with any third-party terms of service for any such Third-Party Services (collectively, “Third-Party Terms”). It shall be Customer’s and end users’ sole responsibility to analyze and interpret any applicable Third-Party Terms and comply therewith. Each such user is solely responsible for their interpretation of Third-Party Terms and their actions relevant to compliance thereof. By using the Services, Customer hereby releases Licensor and waives any and all claims or claim rights that it may have against Licensor, and releases and indemnifies Licensor against any claims that any third-party may have against Customer or end users, including with respect to use of any Third-Party Services, including if accessed or used via our Services, and with respect to Third-Party Terms, applicable privacy policies or any other rules or regulations of such third-parties. Without limiting the generality of the foregoing, Licensor may elect, in our discretion, to utilize social logins, allowing you to login to the Services via other third-party authentication services, such as (without limitation) Facebook, Twitter, LinkedIn, Google, or other account credentials. Customer understands that these are Third-Party Services, and this in no way creates and endorsement of, by or from Licensor to them or vice versa, that Licensor is not responsible for such third-party logins, systems or data, and that by using such third-party logins, Customer may be subject to their respective privacy policies and other terms of use. Licensor is not responsible for any failure or inability to integrate with such Third-Party Services due to factors outside Licensor’s control, such as, without limitation, if any Third-Party Service changes, blocks, or even eliminates their applicable APIs.
- Internet Access and Equipment. You are responsible for maintaining your own access to the internet, and for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like, and for maintaining the security thereof.
- B2B Terms. Some of the Services are not permitted to be resold or used for the benefit of third-parties, but to the extent mutually agreed by the parties, certain Services may be used by Customer, subject to all other terms and conditions herein, to offer to and for the use of Customer’s clients, customers and end users, (collectively, “end users”). Customer may elect to allocate liability between Customer and end users in Customer’s discretion provided that Licensor is not responsible for any such liability. Customer shall be responsible for clearly and conspicuously disclosing to end users (including without limitation in any of Customer’s applicable posted terms and conditions and in any written agreements between Customer and its end users): (i) Customer (and not Licensor) is solely responsible for all content and any services Customer provides to end users, (ii) that Licensor shall have no liability whatsoever to end users, (iii) that Licensor is not responsible for any disputes between Customer and Customer’s end users, and (iv) with respect to use of the Services by end users, end users are responsible for and subject to all the same terms as herein, which must be fully disclosed to them by you; all disclaimers, warranty limitations, and limitations of liability, by Licensor herein or otherwise with respect to the Services are applicable not only to Customer but also to end users. Customer shall not state or imply otherwise. Customer hereby agrees to indemnify, defend and hold harmless Licensor from any for any allegation, loss, liability, claim made against Licensor by any end users or otherwise arising out of any breach of this paragraph. Notwithstanding anything to the contrary (including without limitation in Section 2.1), Customer’s end users, when using the Services, are also customers of Licensor, solely to the extent necessary to permit Licensor the right to collect, store, process and use, any profile data or other data from or about such end users, as its customers, to the extent permitted by applicable laws. Customer is responsible for ensuring that it makes all required disclosures to, and obtains all necessary consents from, end users, to allow such collection, storage, processing and use.
- Messaging & Content. Customer or end users own (and are responsible for) the content you or they post within or through the Service, but Licensor owns the rights to any metadata we collect from or about the message(s) or usage including without limitation about senders, recipients, timestamps, open rates, etc. Customer shall comply with all laws, rules and regulations now or hereafter promulgated by any government authority or agency that are applicable to its use of the Services, the messages or content it posts or sends through the Service, or the transactions contemplated in this Agreement, including without limitation, the Telephone Consumer Protection Act of 1991 (“TCPA”), and all industry standards, self-regulatory guidelines and best practices, including without limitation as promulgated by the Cellular Telecommunications Industry Association (“CTIA”). As between Customer and Licensor, Customer is solely responsible for compliance with all such laws with respect to its use of the Services, and any messages or content it posts or sends through the Service. Customer shall honor immediately any end user requests to opt-out or stop further messaging and desist from sending any further message following receipt of any such opt-out or stop request.
- All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or by email (in each case with confirmation of receipt). Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective addresses first set forth above or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section.
- Customer may not assign this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of Licensor. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees.
- Customer expressly grants Licensor the right to include Customer in a list of customers on Licensor’s website or other promotional material in relation to the Services for marketing purposes. Customer can deny Licensor this right at any time by submitting a written notice, requesting to be excluded from promotional material. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.
- Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, pandemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (i) gives the other party written notice of such cause promptly; and (ii) uses its reasonable efforts to correct such failure or delay.
- Both Parties will use their best efforts to settle amicably all differences related to the Agreement. In the event such amicable settlement is not achieved within a reasonable period of time, Customer consents and agrees that for any controversy or claim arising out of or relating to this Agreement, including any breach of the Agreement, Licensor may elect for it be settled by binding arbitration before a single arbitrator in accordance with Texas State law and the Commercial Arbitration Rules of the American Arbitration Association. Customer expressly consents to venue and arbitration in the State of Texas. The decision of the arbitrator is final, and there shall be no right of appeal. Any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The fees and costs of the arbitrator shall be shared equally by Provider and Company. The prevailing party shall be entitled to recover its reasonable attorney fees and costs.
- Entire Agreement; Construction. This Agreement and its Exhibits and Schedules, constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. Licensor reserves the right to update these terms at any time with or without notice by posting an updated version. No terms in any purchase order or other document delivered by Customer shall be deemed to amend the terms of this Agreement and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by Licensor. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement. The word “including” shall be construed non-exclusively, to mean “including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may occur. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.
- Independent Contractors.The relationship of Licensor and Customer established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.
- Non-Solicitation. During the Term of this Agreement and for a period of one (1) year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Licensor or (ii) hire or engage for any services any person employed by Licensor. In the event of a breach of this nonsolicitation clause, Customer agrees to pay Licensor compensation equal to Licensor’s employee’s annual salary as liquidated damages, and not a penalty, which Customer agrees is fair and reasonable compensation for Licensor.
- Governing Law and Jurisdiction; Attorneys’ Fees. This Agreement shall be governed by and construed under the laws of the State of Texas without regard to conflict of laws provisions. The federal and state courts sitting in Harris County, Texas shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue, including the objection of forum non conveniens. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
Last Updated August 1, 2022. Licensor reserves the right to update these terms (including any exhibits or schedules) from time to time.
EXHIBIT A
Service Levels.
Subject to the terms of this Agreement, ZenCharts shall use commercially reasonable efforts to: (a) maintain the security of the Service; (b) make the Service generally available 24 hours a day, 7 days a week; in each case, except for: (i) planned downtime, outside of normal business hours; and (ii) downtime caused by circumstances beyond ZenCharts’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, pandemic, civil unrest, acts of terror, strikes or other labor problems, telecommunications or network failures or delays, computer failures involving hardware or software not within ZenCharts possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks); (iii) any defect, error or problem caused by operator error; (iv) any third-party product or service outside of Company’s firewalls, including without limitation, network or telecommunications services, client connectivity provider services, mobile carrier services, and/or internet latency; (v) any unauthorized or improper use of the Services contrary to this Agreement or the documentation; (vi) any unauthorized combination of the Services with any third-party products other than as expressly specified in the documentation; or (vii) problems with any authorized user’s, government agency’s or other third-party’s hardware, software, systems or networks, including LANS, WANS, VPNs, etc. or any failure of such items to conform to any capacity requirements.
Customer is solely responsible for providing, at its own expense, all network access to the Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Service.
ZenCharts has implemented Appropriate Security Measures (as defined by the Business Associate Agreement) and maintains the Service at reputable third-party Internet service providers and hosting facilities. However, Customer acknowledges and agrees that, notwithstanding such Appropriate Security Measures, use of or connection to the Internet provides the opportunity for unauthorized third-parties to circumvent such precautions and illegally gain access to the Platform Services and Customer Data. Accordingly, ZenCharts cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
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