1. SUBJECT MATTER AND SCOPE
1.1 Zachcart Platform Subscription Services Agreement. THIS SUBSCRIPTION SERVICE AGREEMENT ("AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN ZACHCART, INC. ("ZACHCART", "OUR", "US", OR "WE") AND THE PERSON OR ENTITY ("CUSTOMER," "YOU," OR "YOUR") EXECUTING OR ACCEPTING THIS AGREEMENT. BY EXECUTING AN ORDER FORM OR BY OTHERWISE ACCEPTING THIS AGREEMENT, CUSTOMER REPRESENTS AND WARRANTS THAT THE INDIVIDUAL TAKING SUCH ACTION (THE “AUTHORIZING INDIVIDUAL”) HAS FULL LEGAL POWER TO BIND CUSTOMER. CUSTOMER ACKNOWLEDGES THAT IT BECOMES LEGALLY BOUND BY THIS AGREEMENT ON THE EARLIER OF: (A) THE DATE AN AUTHORIZED REPRESENTATIVE EXECUTES OR ELECTRONICALLY ACCEPTS AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE; OR (B) THE DATE CUSTOMER (OR ITS AUTHORIZING INDIVIDUAL) COMPLETES THE ACCOUNT-CREATION WORKFLOW ON THE Zachcart PLATFORM AND AFFIRMATIVELY CLICKS OR CHECKS THE BOX OR BUTTON LABELLED “I HAVE READ AND AGREE TO THE Zachcart PLATFORM SUBSCRIPTION SERVICES AGREEMENT” OR WORDS OF SIMILAR IMPORT (THE “CLICKWRAP EFFECTIVE DATE”). SELECTING SUCH CHECKBOX OR BUTTON CONSTITUTES A “SIGNATURE” AND “SIGNED WRITING” UNDER: (i) THE U.S. ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (15 U.S.C. §§ 7001 ET SEQ.), THE UNIFORM ELECTRONIC TRANSACTIONS ACT AS ADOPTED BY THE RELEVANT STATE, AND ANY COMPARABLE LEGISLATION. THE AGREEMENT SHALL BE ENFORCEABLE TO THE SAME EXTENT AS IF IT WERE PHYSICALLY SIGNED. THE ORDER FORMS ARE INCORPORATED HEREIN BY REFERENCE. THE ELECTRONICALLY SIGNED AGREEMENT SHALL BE ENFORCEABLE TO THE SAME EXTENT AS IF IT WERE PHYSICALLY SIGNED.
1.2 Customer Representation. By accepting this Agreement as a representative of an organization, whether private or public, hereinafter referred to as "Customer," you represent and warrant, under applicable law, that (i) you are authorized and have the legal right to enter into a binding agreement on behalf of the Customer, or you have specific powers, or have specific and express authorization from a representative of the Customer vested with the authority to agree with this Agreement; (ii) you have understood all terms and conditions, considering the entirety of this Agreement's content; and (iii) you, on behalf of the Customer, agree to all the terms and conditions of this Agreement.
1.3 Definitions. Capitalized terms used in this document shall have the meaning ascribed to them in Article 2 or elsewhere in this document.
1.4 Out of scope. The Services always exclude (i) the provision of any software, services, or content that are not provided to you by Zachcart (Third-Party Offering), including Applications or on-premises software provided by Third Parties and external websites, even if they interoperate with the Services, can be accessed from the Services, or are offered in an online marketplace provided by Zachcart; (ii) the transmission of data or software to and from the exit of the wide area network of the data center used by us to provide the respective Service; and (iii) any hardware intended for the connection of devices, systems, or other equipment to the Platform. You are responsible for securing and maintaining an internet connection and suitable connectivity to the Services at your own expense.
2. DEFINITIONS
2.1 “Access Credentials” mean any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Subscription Service.
2.2 “Affiliate(s)” means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, by a party. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a person, whether through ownership of more than fifty percent (50%) of the voting interests of a person or by written agreement.
2.3 “Agency” is a person or entity that manages, uses and accesses the Platform, on behalf of an Organization identified in an Order Form in the “Advertiser” field.
2.4 “API” means the various application programming interfaces or software development kits and any security key we make available for you to access an API or other technical resources, including, without limitation, on-premise applications we make available for you by us, and information pertaining to the installation, configuration, integration, operation, availability, or maintenance of the above.
2.5 “Benefit” means any special commercial term or service that a Partner makes available to a Customer through the Platform under a direct agreement between such Partner and the Customer.
2.6 “Benefit Terms of Use” means the online document drafted and uploaded by a Partner that sets forth the rights and obligations of the Partner and the Customer with respect to a specific Benefit.
2.7 “Clickwrap Acceptance” means Customer’s electronic assent to this Agreement given by selecting the designated checkbox or button during account creation or a similar workflow on the Platform.
2.8 “Confidential Information” means information that a party (as the “Disclosing Party”) provides or makes available about its business affairs, products, pricing, confidential intellectual property, encryption keys, API keys, trade secrets, third-party confidential information, and other sensitive or proprietary information in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” to the other party (as the “Receiving Party”) in connection with the Agreement. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain, (b) known to the Receiving Party at the time of disclosure, (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party, or (d) independently developed by the Receiving Party.
2.9 “Customer,” “you,” or “your” means an Organization or an Agency identified in an Order Form in the "Customer" field. When the Customer is an Agency, the expressions “Customer Content” and “Customer Systems” must be understood as “Customer and Organization Content” and “Customer and Organization Systems”.
2.10 “Customer Content” means any information, data, and other content that is submitted, posted, integrated, or otherwise transmitted by or on behalf of you to or through or using the Subscription Services, and the Zachcart Material. Customer Content does not include Resultant Data or information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags we incorporate into the Zachcart Material or otherwise collected through the Subscription Service or API.
2.11 ”Customer Systems” means your, your Affiliates, your Locations, or your Users information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer, an Affiliate, a Location or an User, or through the use of third-party services (excluding the Zachcart Systems).
2.12 “Data-Integration Terms” means the standard terms governing any transfer of Customer Content from the Platform to a Partner, as referenced in Section 4.4 below and accepted electronically by the Customer within the Platform.
2.13 “Effective Date” means the earlier of (i) the effective date stated in the header of this Agreement as accepted through an Order Form, or (ii) the Clickwrap Effective Date.
2.14 “Feedback” refers to any suggestion, contribution, or idea for improving or otherwise modifying any of Zachcart’s products, services, or material.
2.15 “Fees” means the charges, costs, and other amounts you pay to access, use, or receive Services or Zachcart Material.
2.16 “Intellectual Property Rights” means, collectively, all (a) patents, patent disclosures, patent applications, and divisions, continuations, extensions or continuations-in-part thereof, and all discoveries which may be patentable; (b) trademarks, service marks, trade dress, trade names and corporate names and registrations and applications for registration thereof (collectively, “Trademark Properties”); (c) copyrights (registered or unregistered), registrations and applications for registration thereof, including all renewals, derivative works, enhancements, modifications, updates, new releases or other revisions thereof, and all works of authorship; (d) computer software (including source code, object code, and manuals), data, databases, code segments, algorithms, objects, routines, templates and documentation; (e) trade secrets and other Confidential Information, including, but not limited to, ideas, processes, formulas, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, production techniques, research and development information, specifications, designs, proposals, technical data, financial and marketing plans, schematics, and customer and supplier lists and information, (f) the internet domain names used by Zachcart or its Affiliates, and (g) the goodwill symbolized by all of the foregoing and connected therewith throughout the world.
2.17 “Location” means a unique physical place associated with a specific Organization.
2.18 “Zachcart,” “we,” “us,” or “our” means ZACHCART, Inc., a Delaware corporation.
2.19 “Zachcart Material” means the API, Professional Services, Introductory Subscription Service, Feedback, Marks, Resultant Data (except to the extent it includes non-anonymized, unaggregated, or other readily identifiable Customer Content), Subscription Service (along with any proprietary code library, processes, know-how, tools, and business and technical methods programmed, designed, created, integrated, incorporated, or otherwise used by or on behalf of us in our Subscription Service), and all other information, materials, content, technical specifications, audio/visual/digital images and representations, methods, software, or other technologies (including our and our service providers information technology infrastructure, collectively, “Zachcart Systems”), that are provided or used by us, our Affiliates, or service providers in connection with an API, Professional Services, or Subscription Services.
2.20 “Order Form” means (a) a written and signed ordering document specifying the Subscription Service and/or Zachcart Material to be provided hereunder that is entered into between you and us or any of our Affiliates, including any addenda and supplements thereto; (b) an online request by a User to provision additional Services end/or Zachcart Material; or (c) a Clickwrap Acceptance containing any commercial terms.
2.21 “Organization” is an entity or individual that has executed this agreement to access and use the Zachcart Platform or delegated this to an Agency.
2.22 “Personal Data” means any information contained in the Customer Content relating to an identified or identifiable individual and is protected similarly as personal data or personally identifiable information.
2.23 “Resultant Data” means data and information related to your or your Users’ use of the Subscription Service or API that is used by us in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Subscription Service, API, or other Zachcart Material as the case may be.
2.24 “Security Measures” means, as to the API, Zachcart Systems, and Subscription Services, the information security policies and programs we have implemented, and will maintain throughout the Subscription Term, based on and consistent with industry guidelines and all applicable statutes, rules or regulations, which include commercially reasonable administrative, physical and technical safeguards designed to (a) protect the privacy, confidentiality, integrity, and availability of the Customer Content against any reasonably foreseeable threats or hazards; and (b) reasonably protect against accidental, unlawful, or unauthorized access, disclosure, or use of such Customer Content.
2.25 “Partner” means an independent third party whose Benefits are offered to Customers via the Platform; Zachcart acts solely as a technical intermediary and is not a party to the Benefit Terms of Use.
2.26 “Point-of-Sale Information” means Customer Content consisting of transactional, inventory and pricing data generated at a retail location and identified in the Data-Integration Terms.
2.27 “Professional Services” means any service provided by us and described in a Statement of Work. Professional Services are subject to the Professional Service Agreement.
2.28 “Services” means Subscription Services and/or Professional Services.
2.29 “Subscription Services” refers to the (a) subscription-based, integration services, tools, applications, and offerings that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by or on behalf of us, and any ancillary products, services, or any related technical or non-technical manuals, instructions, or other documents or materials made available by us to you describing the functionality, components, features, or requirements of the Subscription Service.
2.30 “Subscription Term” means the Initial Subscription Term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent Renewal Subscription Term (if any).
2.31 “Third-Party Offering” means products, services, websites, links, content, material, integrations, bots, and applications from independent third parties (companies or people who are not Zachcart), which host, interoperate, integrate, or otherwise work with or are used in connection with the Subscription Service, API, or other Zachcart Material.
2.32 “User(s)” means Customer and your Affiliates, and any individual (such as employees or consultants) that you or an Affiliate authorizes or allows to access or use the Subscription Services and Zachcart Material. For avoidance of doubt, the number of Users permitted pursuant to an Order Form is unlimited.
3. SUBSCRIPTION SERVICE AND USE OF Zachcart MATERIAL
3.1 Access and Use. We (or our Affiliates and in conjunction with our service providers) will, during the Subscription Term and for your internal business purposes only or the purpose of the Organization identified in the Order Form in the field “Advertiser”, provide you and your Users (non-extensible to your Affiliates and their Users, but extensible for the Organization if the Customer is an Agency) with a nonexclusive, nontransferable right to access and use the Subscription Service and Zachcart Material, provided that (a) you and your Users use of the Subscription Service and Zachcart Material is in accordance with this Agreement and applicable law; and (b) you remain responsible for your Users’ access to and use of the Subscription Service and Zachcart Material and compliance with this Agreement. If you become aware of any violation of this Section or other provisions of this Agreement, please immediately contact Zachcart here or by emailing to support@zachcart.com. We will be able to receive and use Professional Services in accordance with Professional Services Agreements.
3.2 Unacceptable Use. Customer shall not: (a) use the Subscription Service or Zachcart Material for service bureau or time-sharing purposes or in any other way allow third parties (excepted the Organization if the Customer is an Agency) to exploit the Subscription Service or Zachcart Material; (b) provide Subscription Service passwords or other log-in information to any third party; (c) share non-public Subscription Service features or Zachcart Material with any third party; (d) access the Subscription Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the Subscription Service or Zachcart Material; (e) engage in web scraping or data scraping on or related to the Subscription Service or Zachcart Material, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 3.2, including without limitation by Users, Zachcart may suspend Customer’s access to the Subscription Service or Zachcart Material without advanced notice, in addition to such other remedies as Zachcart may have. Neither this Agreement requires that Zachcart take any action against Customer or any User or other third party for violating this Section 3.2, or this Agreement, but Zachcart is free to take any such action it sees fit; (f) gain or attempt to gain unauthorized access to any network, data-storage device or computer system connected to the Platform; (g) probe, scan or test the vulnerability of the Platform or any associated system, including by “ethical hacking” or performance testing, unless expressly authorized in writing by Zachcart; (h) upload or transmit malicious code, scraping bots or other automated means intended to extract data without Zachcart’s prior written consent; (i) interfere with or disrupt the integrity or performance of the Platform, Zachcart Systems or Third-Party Offerings; (j) use the Subscription Service in a way that infringes the Intellectual-Property or privacy rights of Zachcart, any Partner or any third party; or (k) allow minors under 18 to access the Platform except through a duly authorized legal representative, who shall remain fully liable.
3.3 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Subscription Service and Zachcart Material, including without limitation by protecting its passwords and other log-in information. Customer shall notify Zachcart immediately of any known or suspected unauthorized use of the Subscription Service or Zachcart Material, or breach of its security and shall use best efforts to stop said breach.
3.4 Third-Party Offering. The Subscription Service or API may allow you to access, integrate, acquire, or interact with Third-Party Offerings, including such Third-Party Offerings that may allow you to store Customer Content with the Third-Party Offering provider. Zachcart does not license any intellectual property to you as part of any Third-Party Offering and is not responsible or liable to you or others for information or services provided by any third party unless otherwise expressly stated in an Order Form. You should review the third-party terms and privacy policies before acquiring, using, requesting, or linking either the Subscription Service or API to any Third-Party Offering; further, any such terms do not modify this Agreement. WE MAKE NO WARRANTIES REGARDING ANY THIRD-PARTY OFFERING, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT ANY THIRD-PARTY OFFERING WILL (A) REMAIN AVAILABLE THROUGHOUT THE SUBSCRIPTION TERM; (B) BE ERROR-FREE OR RUN UNINTERRUPTED; (C) OFFER ANY PARTICULAR FEATURES OR PERFORMANCE; OR (D) MEET YOUR NEEDS.
3.4.1 Opt-In Mechanism. The Platform may display Partner Benefits. A Customer may activate a Benefit only by (i) accepting the relevant Benefit Terms of Use and (ii) accepting the Data-Integration Terms.
3.4.2 No Agency. Zachcart acts solely as an intermediary connecting Customer and Partner; Zachcart is not a party to, nor responsible for performance of, any Benefit or Benefit Terms of Use.
3.4.3 Revocation. The Customer may deactivate any Benefit at any time inside the Platform; upon deactivation Zachcart will cease the related data transfer without undue delay.
3.4.4 Partner Audits. Customer acknowledges that Zachcart may audit a Partner’s delivery of Benefits and suspend Benefits that are materially non-conforming.
3.5 Changes. There may be times when we need to modify the Subscription Services or API, including, but not limited to, adding, removing, or changing certain features or functions (“Change”), to improve the quality, performance, marketability, or effectiveness of the Subscription Service or API. Any Change will apply to our customers equally. Prior to making a Change, we will make reasonable efforts in providing advance notice to you by posting a notice on our website or in the user interface of the Subscription Service or API.
3.6 Availability. The Subscription Service, API, or other services offered through the Subscription Service or API (e.g., Third-Party Offering) may be unavailable from time to time, or the available of the above may be for a limited time or vary depending on your region or device. While we strive to keep the Subscription Service and API up and running, all online services (regardless of provider) suffer occasional disruptions which may result in the inability to retrieve Customer Content. Except as otherwise provided in this Agreement, Zachcart is not liable to you or your Users for any loss that may occur due to any disruptions described in this Section.
3.7 Suspension. We may suspend or otherwise deny your or your User’s, or any other person’s access to or use of all or any part of the Subscription Service, without incurring any resulting obligation or liability, if: (a) we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires us to do so; or (b) we believe, in good faith and in our reasonable discretion, that Customer or any User has (i) failed to comply with any material term of this Agreement, (ii) accessed or used the Subscription Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement or (iii) in any manner that does not comply with any material instruction or requirement contained in the written documentation available to Customer; or (c) this Agreement expires or is terminated. This Section 3.7 does not limit any of Zachcart’s other rights or remedies, whether at law, in equity, or under this Agreement.
3.8 Zachcart Content. The Zachcart Material includes content that belongs to Zachcart. You may use Zachcart Content as allowed by this Agreement, but we retain any Intellectual Property Rights that we have in the Zachcart Content. Subject to the limited rights expressly provided herein, nothing in this Agreement transfers or assigns to you any of Zachcart’s Intellectual Property Rights in the Zachcart Content or the respective Intellectual Property Rights in any content of other customers or users of the Subscription Service and Zachcart Material. Zachcart expressly reserves all such rights.
3.9 API. We will endeavor to provide an API for the Subscription Service, subject to licensing capabilities, for your use solely for the purpose of creating software or integrating Third-Party Offerings that communicates with the Subscription Service. You and your Users creation, distribution, and use of any software or integration that you or your Users create that utilizes our API is subject to this Agreement, our Implementation Resources and other API documentation, and any applicable or required third-party licensing terms and conditions.
3.10 Feedback. If you give to Zachcart any idea, proposal, suggestion or feedback, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements, you give to Zachcart, without charge, royalties or other obligation to you, the right to make, have made, create derivative works, use, share and commercialize your Feedback in any way and for any purpose. Provider has not agreed to and does not agree to treat as confidential any Feedback that Customer, or other Users give Zachcart, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Zachcart’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s trade secret. You will not give Feedback that is subject to a license that requires Zachcart to license its software, technologies, or documentation to any third party because Zachcart includes your Feedback in them.
3.11 Introductory Subscription Service. From time to time, we may make available a demonstration instance or one or more offers for use of an introductory tier of the Subscription Service at no cost (“Introductory Subscription Service”). You shall comply with all terms, including applicable service, account and data retention limits related to any Introductory Subscription Service, all as posted or otherwise made available to you. We may add or modify terms related to access or use of the Introductory Subscription Service at any time. While we may provide limited support as further detailed in the documentation for the Introductory Subscription Service, CUSTOMER AGREES THAT ANY INTRODUCTORY SUBSCRIPTION SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. Customer further acknowledges that Customer, subject to the terms and conditions of this Agreement, may upgrade to the Subscription Service at any time.
3.11.1 Introductory Subscription Service Suspension/Termination. Either Party may suspend or terminate access or use of any Introductory Subscription Service at any time for any reason or no reason. Notwithstanding anything to the contrary in the Agreement, after suspension or termination of Customer’s access to or use of any Introductory Subscription Service for any reason (a) Customer will not have any further right to access or use the applicable Introductory Subscription Service and (b) Customer Data used in the applicable Introductory Subscription Service may be deleted or inaccessible. Notwithstanding anything contained to the contrary in this Agreement, we and our licensors’ cumulative and aggregate liability arising out of or relating to the Introductory Subscription Service is limited to $1,000 USD.
4. CUSTOMER CONTENT
4.1 Ownership. You retain all rights (including any Intellectual Property Rights) to the Customer Content, and we do not claim ownership of Customer Content. We may use, modify, reproduce, and distribute Customer Content to the extent necessary to: (a) provide the Subscription Services and Zachcart Material to the Customer, you and your Users; (b) protect you and safeguard the Zachcart Material; and (c) improve Zachcart’s products and Services. Without limiting the foregoing, Customer authorizes Zachcart to create Resultant Data and to share Point-of-Sale Information with Partners under Section 4.4 and its subsections below.
4.2 License Grant. You grant to Zachcart a worldwide and royalty-free intellectual property license to use Customer Content, for example, to make copies of, retain, transmit, reformat, display, and distribute via communication tools Customer Content on the Subscription Service and Zachcart Material. We may further analyze Customer Content, to combine Customer Content with Zachcart Content or other data owned or possessed by Zachcart, and to use Customer Content for our business or commercial purposes, by generating Resultant Data. To the extent such Customer Content is collected and used in creating Resultant Data, we will whenever possible use such Customer Content in an aggregated or anonymized manner so as not to identify you or any User. This may not be possible when responding to User support requests or other instances where we need to know the identity of the User to effectively provide the Subscription Service and Zachcart Material.
4.3 Security Measures. We have implemented and we shall maintain throughout the Subscription Term a broad set of information security measures designed to protect Customer Content and any associated Personal Data we may process on your behalf.
4.4 Third-party service providers. You acknowledge and agree that certain of the Subscription Service require Zachcart and/or you to provide Customer Content to third-party service providers; that Zachcart does not own, operate or control such third-party service providers, and is not responsible or liable for any act, omission, or failure to act by any such third-party service provider; and that any use of the services or distribution channels provided by such third-party service providers is expressly governed by and subject to the terms and conditions, policies, and performance of each such third party service provider; and that you will use commercially reasonable efforts to work promptly, independent of Zachcart, to ensure ongoing compliance with the same.
4.4.1 Scope. Where a Customer activates a Benefit that requires data sharing, Zachcart will transmit Point-of-Sale Information to the selected Partner strictly in accordance with the Data-Integration Terms, Benefit Terms of Use, and the Customer’s instructions.
4.4.2 No Reverse Integration. Zachcart will not transmit data originating from a Partner back to the Customer unless separately agreed.
4.4.3 Liability Cap. For claims arising solely out of Zachcart’s transmission of Point-of-Sale Information or other Customer Content to a Partner under Section 4.4, Zachcart’s aggregate liability per calendar year shall not exceed USD 1,000.00 (one thousand U.S. Dollars) and Zachcart shall not be liable for indirect, consequential or punitive damages. This cap is not separate from the general limitation of liability in Article 9.
4.4.4 Customer Responsibilities. In addition to other Customer Responsibilities outlined in this Agreement, the Customer remains responsible for: (a) maintaining accurate source data; (b) ensuring a valid legal basis for any personal-data processing; and (c) honoring any data-subject requests directed to the Customer.
4.5 Customer Responsibilities. You acknowledge and agree that you are solely responsible and liable for Customer Data (Including without limitation, for obtaining all necessary approvals, consents, and authorizations to provide the Customer Data to Zachcart as provided herein) for use in connection with the Subscription Service. You represent and warrant that (a) you own all Customer Data or have all rights that are necessary to grant Zachcart the licensed rights in Customer Data under this Agreement; (b) your collection and use of Customer Data has and will be in compliance with all applicable laws and regulations, including without limitation those concerning data and information protection or privacy; and (c) neither the Customer Data, nor the inclusion or use of Customer Data in connection with the Subscription Service, will infringe, misappropriate or violate any Intellectual Property Rights, or violate the privacy rights, of any third party, or result in the violation of any applicable law or regulation, including without limitation those concerning data protection or privacy. You further acknowledge and agree that you will employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (x) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Subscription Service; (y) ensure that each Access Credential consists of a unique username (typically a User’s email address) and password that meets industry best practices as to length and complexity to mitigate malicious access to the Subscription Service; and (z) ensure the availability of Customer Data as neither our Subscription Service nor API replace the need for you to maintain regular data backups or redundant data archives. We have no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data outside of implementing and maintaining the Security Measure during the Subscription Term.
4.6 Correctness and right to correct Customer Content. You acknowledge and agree that certain of the Subscription Services and Zachcart Material require you to provide Customer Content to Zachcart to permit it to perform its obligations under this Agreement, and you represent and warrants that (i) all Customer Content provided to Zachcart is true, accurate, and complete at the time it is submitted; and (ii) you will promptly update any such Customer Content as necessary to reflect any changes and ensure its continued accuracy. In the event that Zachcart determines that any submitted Customer Content is inaccurate or misleading, contains errors, fails to comply with Zachcart standards, or fails to comply with third-party service provider requirements, Zachcart will have the right, but not the obligation, to correct such Customer Content.
5. FEES AND PAYMENTS
5.1 Order Forms. Each Order Form shall: (a) be treated as a separate and independent Order Form; and (b) become effective on the date referenced in an applicable Order Form.
5.2 Fees and Payment. You will pay all applicable, undisputed Fees in the amount and manner set forth in the Order Form without any right of set-off or deduction. Fees and any discounts, rebates, or other incentives are subject to change at each Renewal Subscription Term.
5.3 Taxes and Withholding. You are responsible for all Taxes on your receipt of the Subscription Service.
6. TERM AND TERMINATION
6.1 Subscription Term. The Subscription Term will begin as of the Effective Date and expire on the date specified in the applicable Order Form (the “Initial Subscription Term”). Except as otherwise specified in the Order Form, the Subscription Term will automatically renew for additional successive terms equal to the Initial Subscription Term (each a “Renewal Subscription Term”), unless and until either party provides Notice of non-renewal at least thirty (30) days before the current Subscription Term expires (the “Nonrenewal Deadline”). For the avoidance of doubt, a failure to provide a nonrenewal notice by the Nonrenewal Deadline will result in the renewal of the Subscription Service with all applicable Fees due in accordance with Section 5.2.
6.2 Termination for Cause. Either party may terminate the Agreement (a) if the other party breaches its material obligations and fails to cure within thirty (30) days of receipt of written Notice, or (b) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
6.3 Effect of Expiration or Termination. If an Order Form expires or terminates, then this Agreement will remain in effect for any outstanding Order Forms, and you will immediately discontinue all use of the Subscription Service and Zachcart Material subject to the expired or terminated Order Form. At expiration of the last outstanding Order Form or earlier termination as otherwise provided in this Agreement, you will immediately discontinue all use of the Subscription Service and Zachcart Material. Further, (a) each party will return or, if requested, destroy any Confidential Information belonging to the other party in its possession; (b) all earned and unpaid Fees become immediately due; and (c) at your written request and instruction (which must be received within ten (10) days of expiration or termination), we will: (i) provide you with (1) temporary access to the Subscription Service to retrieve Customer Data or (2) copies of all Customer Data then in the Zachcart Systems or otherwise in our possession or control in a commonly accessible data format, or (ii) delete all Customer Data in the Zachcart Systems or otherwise in our possession or control (1) unless we are legally prohibited; or (2) except to the extent we created archived copies of the Customer Data during the course of performing our obligations under this Agreement, then we will destroy such archived copies pursuant to our internal practices for record destruction. We have no obligation to maintain Customer Data after the thirty (30) day period referenced above.
6.4 Termination and Nonrenewal Notices. Customer may send Zachcart any Notices required under Section 6.1 (i.e., nonrenewal), and Section 6.2 (material breach) to to support@zachcart.com.
6.5 Survival. The provisions of this Section 6.5 (Survival) along with Article 2 (Definitions); Section 3.1 (Access and Use); Section 4.5 (Customer Responsibilities); Section 6.3 (Effect of Termination); Section 5.2 (Fees and Payment); Section 5.3 (Taxes and Withholding); Article 7 (Confidentiality); Article 8 (Disclaimer of Warranties); Article 9 (Limitation of Liability); Article 10 (Indemnification); and Article 11 (Miscellaneous) will survive the expiration or termination of this Agreement.
7. CONFIDENTIALITY
7.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to this Section, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing: the financial terms of this Agreement and Zachcart Content are the Confidential Information of Zachcart. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.2 Safeguarding of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party will for three (3) years following the expiration or termination of this Agreement: (a) except as may be permitted by and subject to its compliance with this Section, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Article 7; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (b) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Article 7 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
7.3 Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the Notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose.
8. DISCLAIMER OF WARRANTIES.
8.1 ZACHCART, AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SUBSCRIPTION SERVICE OR ZACHCART MATERIAL. YOU UNDERSTAND THAT USE OF THE SUBSCRIPTION SERVICE OR ZACHCART MATERIAL IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SAME ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” YOU BEAR THE ENTIRE RISK OF USING THE SUBSCRIPTION SERVICE OR ZACHCART MATERIAL. ZACHCART DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF THE SUBSCRIPTION SERVICE OR ZACHCART MATERIAL. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SUBSCRIPTION SERVICE, API, OR OTHER ZACHCART MATERIAL WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON’T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS.
9. LIMITATION OF LIABILITY
9.1 LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES. WE SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE) ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE SUBSCRIPTION SERVICE OR ZACHCART MATERIAL, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 NOTWITHSTANDING THE FOREGOING, THE DEDICATED CAP SET FORTH IN SECTION 4.4.4 SHALL APPLY TO DATA-INTEGRATION ACTIVITIES. OUR ENTIRE LIABILITY FOR ALL CLAIMS RELATED TO OR ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE SUBSCRIPTION SERVICE, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, OR ANOTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED IN THE AGGREGATE THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER IN THE 3 MONTH PERIOD PRECEDING THE DATE OF EVENT GIVING RISE TO THE CLAIM OR CLAIMS. THE FOREGOING LIMITATION SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. MULTIPLE CLAIMS SHALL NOT EXPAND ANY OF THE LIMITATIONS SET FORTH IN THIS ARTICLE 9.
10. INDEMNIFICATION
10.1 Procedure. The party seeking indemnification hereunder (as the “Indemnified Party”): (a) will promptly provide written Notice to the party from whom indemnification is sought (as the “Indemnifying Party”) of any third-party claim, demand, lawsuit, notice of violation, or proceeding (collectively, a “Claim(s)”); provided, however, that the failure to give prompt Notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure, (b) will reasonably cooperate with the Indemnifying Party in connection with the defense of a Claim, at the Indemnifying Party’s expense, and (c) may, at its own expense, participate in the defense of a Claim. An Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim; however, neither the Indemnifying Party nor an Indemnified Party may settle any Claim under this Agreement where such settlement includes: (x) an admission of liability or fault on behalf of the other party or (y) the creation of an obligation or imposition or forbearance of an act (including injunctive or other equitable relief) on the other party, without the other party’s prior written consent.
10.2 Indemnity by Customer. You agree to indemnify and defend Zachcart, our Affiliates, and our Affiliates officers, directors, employees, contractors, successors, permitted assigns, agents, suppliers and resellers from any and all Claims and any liability, damages, judgments, settlements, interest, fines, penalties, fines, or awards (including reasonable attorneys’ fees) (collectively, “Losses”) arising from: (a) violations of your or your Users’ obligations under Article 3; and (b) allegations that the Customer Content (i) infringes a third-party’s Intellectual Property Right or (ii) when used with the Subscription Service or Zachcart Material or as contemplated under this Agreement such use violates applicable law.
10.3 Indemnity by Zachcart. We will defend you and your officers, directors, employees, successors, and permitted assigns (each, a “Customer Indemnitee”) against a Claim (other than a Claim brought by an Affiliate of a Customer Indemnitee) (a “Customer Indemnity Claim”) arising out of or relating to an allegation that your use of the Subscription Service in accordance with this Agreement infringes or misappropriates a third-party’s United States Intellectual Property Right and we will indemnify you from and against any Losses resulting from such Claim. If the Subscription Service is enjoined in any manner due to such infringement or if we believe an injunction materially affecting your use of the Subscription Service is likely, we may in our discretion and at no cost to you: (a) procure for you the right to continue to use the Subscription Service as contemplated under this Agreement, (b) modify or replace the allegedly infringing features or components to the Subscription Service with a non-infringing equivalent, or (c) if we determine that neither (a) nor (b) are practicable, we may terminate this Agreement or the Order Form pertaining to allegedly infringing Subscription Service and refund any Fees paid in respect of such terminated Subscription Service for the remainder of the relevant Subscription Term starting with the termination date designated by us. The above indemnification obligation does not apply if you: (x) use the Subscription Service in combination with data, software, applications, hardware, equipment, products, services, or other technology where the Subscription Service would not by itself, and without modification, be infringing or (y) fail to use the Subscription Service in accordance with the then-applicable specifications or documentation.
10.4 SECTION 10.3 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF THE INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY FOR ANY LOSSES COVERED UNDER SECTION 10.3.
11. MISCELLANEOUS
11.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
11.2 Interpretation. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
11.3 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
11.4 Entire Agreement. This Agreement, together with any applicable Order Forms and any other documents expressly incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, an applicable Order Form and any other documents incorporated herein by reference, along with any related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein), the following order of precedence governs: (a) first, the Order Form, excluding its exhibits, schedules, attachments, and appendices; (b) second, these terms and conditions contained herein; and (c) any other documents incorporated herein by reference.
11.5 Assignment. Neither party may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, that, a party, with Notice to the other party, may assign their rights or delegate their obligations to any successor of such party. For purposes of this Section, “successor” means any person, firm, or corporation or other legal or business entity which, at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all of substantially all of the assets or business of the assigning or delegating party. No assignment, delegation, or transfer will relieve a party of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 11.5 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
11.6 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communication (each a “Notice”) under this Agreement have legal effect only if in writing and addressed to a party at the address contained in the most recent informed address or such other person that such party may designate from time to time in accordance with this Section. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, with confirmation of transmission, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. Please copy to support@zachcart.com on all Notices.
11.7 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11.8 Amendment. We may amend this Agreement from time to time by posting an amended version at our Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Zachcart written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 6, Term and Termination). Customer’s continued use of the Subscription Service and Zachcart Material following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
11.9 Electronic Signatures; Electronic Records. Each Party consents to the use of electronic signatures and electronic records and agrees to conduct transactions electronically. Platform logs evidencing Clickwrap Acceptance are admissible and create a rebuttable presumption of authenticity absent manifest error.
11.10 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.11 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
11.12 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party's trademarks, Service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided; however, we may include your name and logo in our promotional and marketing materials where we list our current or former customers.
11.13 AGENCY REPRESENTATIONS AND WARRANTIES. BY ENGAGING THE ZACHCART PLATFORM, THE AGENCY (IF ANY) REPRESENTS AND WARRANTS THAT IT HOLDS A VALID, WRITTEN, AND SIGNED AUTHORIZATION TO ACCESS AND PROCESS THE ORGANIZATION’S DATA ON ITS BEHALF AND AT ITS DIRECTION. THE AGENCY FURTHER AGREES TO INDEMNIFY AND HOLD ZACHCART HARMLESS FROM ANY AND ALL LIABILITIES ARISING FROM THE AGENCY'S LACK OF AUTHORITY TO CONTRACT ON BEHALF OF THE ORGANIZATION OR TO PROCESS THE ORGANIZATION’S DATA.
11.14 Compliance with Law. Each Party is responsible for and shall comply with all laws and regulations that are applicable to their respective obligations under this Agreement.
11.15 Technology Export. Customer shall not: (a) permit any third party to access or use the Subscription Service or Zachcart Material in violation of any U.S. law or regulation; or (b) export any software provided by Zachcart. Without limiting the generality of the foregoing, the Customer represents and warrants that it (i) is not listed on, or owned 50 percent or more by parties listed on, the U.S. Department of Treasury’s Specially Designated Nationals (“SDN”) list, the U.S. Department of Commerce’s Denied Persons List or Entity List, or any comparable list maintained by the European Union or United Kingdom; (ii) will not export, re-export, release or otherwise transfer any Software, technical data or direct product thereof received under this Agreement in violation of the U.S. Export Administration Regulations (“EAR”) or regulations administered by the U.S. Office of Foreign Assets Control (“OFAC”); and (iii) will not use the Subscription Service in, for the benefit of, or to support transactions involving Cuba, Iran, North Korea, Syria, the Crimea, Donetsk or Luhansk regions of Ukraine, or any other embargoed destination under U.S., U.K., E.U. or Brazilian law.
11.16 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control. In allocating the risk of delay or failure of performance of a party’s respective obligations under this Agreement, the parties have not considered the possible occurrence of any of the events listed herein or any similar or dissimilar events beyond their control, irrespective of whether such listed, similar, or dissimilar events were foreseeable as of the date of this Agreement.
11.17 Choice of Law & Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed solely by U.S. law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the exclusive jurisdiction of the Court of the Judicial District of Orlando, state of Florida, United States of America. This Section 11.17 governs all claims arising out of or related to this Agreement, including without limitation liability claims.