This Service Subscription Agreement (the “Agreement”) is entered into by and between Zesty.IO Platform, Inc., a Delaware corporation (“Zesty”) and the entity accepting this agreement by (“Subscriber”), as of the date on which the Subscriber provides such signature (“Effective Date”). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of Zesty’s web-based services. By executing this Agreement, Subscriber expressly acknowledges that it has read and understands all terms and conditions contained in the following pages and agrees to be bound by this Agreement. SUBSCRIBER AGREES THAT ANY DISPUTE ARISING OUT OF THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION AS SET FORTH IN SECTION 11.2.

ZESTY USER TERMS AND CONDITIONS

1.  SERVICE DEFINITIONS

1.1 “API” means application programming interface, which is the set of remote endpoints which are used to programmatically control Zesty.io.

1.2 “CDNR” means Content Delivery Network Request . This represents the delivery of a cached data (Web Files, Images, Video, Code, Data Streams) from Zesty.io Cloud to the subscriber’s consumer. 

1.3 “Cloud Provider” means the 3rd party cloud hosting vendor which includes Amazon Web Services (AWS), Microsoft Azure (Azure), or Google Cloud Platform (GCP).

1.4 “Consumer” means the Subscriber’s end user that consumes (download or runs) software or interfaces delivered by or built on Zesty.io.

1.5 “Content Instance” means the primary service created in Zesty.io which includes a dynamic Rest API that matches custom content configuration, and a dynamic user interface to control the API.

1.6 “Customer” means the customer of the subscriber, which the subscriber supports and operates in Zesty.io on behalf of.

1.7   “Deliverable” means, in connection with performance of Professional Services by Zesty.io, the work product that Zesty.io is expressly required to deliver to Subscriber as set forth on an applicable SOW (as defined in Section 2.5), but not including the Zesty.io Services or any implementations of the Zesty.io Software.

1.8   “Documentation” means Zesty.io-provided user documentation, in all forms, relating to the Zesty.io Services (e.g., user manuals, on-line help files).

1.9 “Licenses” means the Zesty.io Software. 

1.10 “ORR” means WebEngine Origin Render Request . This represents a unique resource that Zesty.io WebEngine is responsible to render if no cache resource exists in the CDN. A unique resource can be any HTML document (such as home, category, product, or article pages), Javascript or CSS file. Unique resources may also be Javascript Object Notation (JSON) API endpoints or custom file format endpoints (CSV, TSV, etc.). Any file that Web Engine delivers to a consumer which has a URL that must be processed or rendered by Zesty.io's platform. A URL with a query parameter such as /about/?test=124 is considered a unique resource separate from /about/ or any variation of a /about/?test=*, where * is a wildcard value.

1.11 “RPS” means requests per second, as it pertains to Zesty.io Services. 

1.12   “Server” means that server on which the Zesty.io Software is installed and operated.  A Server may be located on Subscriber’s site or may be a cloud server located at a third party’s remote hosting site contracted for by Subscriber.

1.13 “Services” means the services  as purchased by Subscriber from Zesty.io for the Fees in Quote/Contract. 

1.14 “SLA” means service level agreement.

1.15 “Subscriber” means the Entity and person signing the Quote/Contract.

1.16   “Technical Support Services” means the support services relating to the Zesty.io Software

1.17 “Technical Support” means Technical Support Services.

1.18   “Third Party Technology” means third party proprietary technology that Zesty.io has licensed for inclusion in or use in connection with the Zesty.io Software.

1.19 “Updates” means bug fixes, patches and maintenance releases of the Zesty.io Software that do not constitute an Upgrade and that are made generally available by Zesty.io to its Subscribers for no additional fee.

1.20 “Upgrades” shall mean new or improved features or functions of the Zesty.io Software denoted by a change to the right of the first decimal point (e.g. v1.0 to v1.1) and that are made generally available by Zesty.io to its Subscribers for an additional fee and not as part of the standard Technical Support Services.

1.21 “URL” means Uniform Resource Locator which represents a unique string of text that web browsers use to resolve data from a specific server computer on the internet.

1.22   “Zesty.io Services” means the services provided to Subscriber by Zesty.io.

1.23   “Zesty.io Software” means the software identified in your contract, which may include the following (as applicable): (a) Zesty.io-proprietary software included in the Zesty.io Software; (b) Third Party Technology; and (c) Updates and Upgrades to the Zesty.io Software made available by Zesty.io hereunder, if any.

1.24 “ZPR” Zesty.io Platform Request (ZPR) means any request to Zesty.io application programming interface (API) services: Instances API, Accounts API, Media API, and Auth API.

2.  USE OF THE ZESTY.IO SERVICES

2.1   Use of the Zesty.io Software.  Subject to the terms and conditions of this Agreement, Zesty.io grants to Subscriber during the term of this Agreement a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.3), non-sublicensable right to use the Zesty.io Software solely as installed on Subscriber’s Server, in connection with Subscriber’s business operations and subject to the overage restrictions stated in your contract.

(a)      Subscriber shall be entitled to make such back-up copies (“Backup Copies”) of the Zesty.io Software solely incidental to and consistent with Subscriber’s usual policies for backup of its internal data stored on Subscriber’s Server, provided such Backup Copies shall be a snapshot of Subscriber’s Server and at no time be stored in a manner enabling them to be directly executed.  Any such Backup Copies shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Zesty.io Software.

2.2   Use of the Documentation.  Subject to the terms and conditions of this Agreement, Zesty.io grants to Subscriber during the term of this Agreement a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.3), non-sublicensable license to reproduce, without modification, and use a reasonable number of copies of the Documentation solely in connection with use of the Zesty.io Services in accordance with this Agreement.

2.3   Subscriber Obligations.  During the term of this Agreement, Subscriber shall maintain Subscriber’s Server in a manner that meets or exceeds Zesty.io’s minimum requirements, including any requirements in your contact/quote.  Subscriber hereby agrees that Zesty.io may, during the term of this Agreement, remotely access the Subscriber’s Server and the Zesty.io Software installed therein, for the purposes of performing the Zesty.io Services, Professional Services (if applicable) and to collect and analyze information(except any Subscriber employee personal information or Customer personal information) relating to the provision, use and performance of various aspects of the Zesty.io Services and related systems and technologies (including, without limitation, information concerning Subscriber’s use of the Zesty.io Services and data derived therefrom), and Zesty.io may (during and after the term of this Agreement) to use such information and data for the purpose of performing the Zesty.io Services, including to improve and enhance the Zesty.io Services and for other development, diagnostic, analytics and corrective purposes in connection with the Zesty.io Services and other Zesty.io offerings.

2.4   Technical Support Services.  For so long as Subscriber is current with its payment of the fees specified in your contract or a relevant purchase order (the “Fees”), Zesty.io will use commercially reasonable efforts to provide Subscriber with the Technical Support Services relating to the Zesty.io Services.

2.5   Professional Services.  Subject to Subscriber’s timely payment of all applicable fees set forth in your contract or on statements of work made under this Agreement and mutually executed by the parties, if any (“SOWs”), Zesty.io will (i) provide to Subscriber in a professional and workmanlike manner the professional services set forth on such SOWs (“Professional Services”), (ii) provide to Subscriber the Deliverables set forth on such SOWs, and (iii) grant to Subscriber a non-exclusive, perpetual, irrevocable, transferable, sublicensable, worldwide, fully-paid, royalty-free license under Zesty.io’s intellectual property rights in the Deliverables to use, reproduce, distribute, perform, and display the Deliverables for any purpose.  Unless otherwise agreed in an SOW, Zesty.io will own all right title and interest in any Deliverables and intellectual property rights thereto.

2.6   Use Restrictions.  Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to:  (a) rent, lease, or otherwise permit third parties to use the Zesty.io Services or Documentation;  (b) provide the Zesty.io Services to third parties (e.g., as a service bureau);  (c) circumvent or disable any security or other technological features or measures of the Zesty.io Services;  (d) use the Zesty.io Services to process or store any data prohibited by Section 4.1; or (e) modify, adapt, translate, create derivative works of, all or any portion of, or reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of, any portion of the Zesty.io Services or Documentation.  Subscriber will not use the Zesty.io Services in any manner not permitted by, or that will cause Zesty.io to be in violation of, any applicable policies of the third party provider of Subscriber’s Server.

2.7   Compliance with Laws.  Each party shall comply with all applicable laws and regulations.

2.8   Actions by Subscriber’s Employees, Agents, Vendors, and Contractors.  Subscriber may permit Subscriber’s employees, agents, vendors and contractors, including without limitation agency partners, independent software vendors, and systems integrators (“Authorized Users”) to access and use the Zesty.io Software and Documentation provided by Zesty.io to Subscriber, provided that Subscriber (a) procures that such Authorized Users comply with the terms and restrictions set forth in this Agreement for use of the Zesty.io Software, (b) pays Fees due to Zesty.io for all Zesty.io Services used by such Authorized Users, as if such Zesty.io Software had been used directly by Subscriber, and (c) is financially responsible for, and defends and indemnifies Zesty.io for, any and all costs, losses, liability, and expenses arising from such access and use by Authorized Users to the same extent as if such access and use had been made directly by Subscriber.

2.9   Protection against Unauthorized Use.  Subscriber will use reasonable efforts to prevent any unauthorized use of the Zesty.io Services and Documentation and immediately notify Zesty.io in writing of any unauthorized use that comes to Subscriber’s attention.  If there is unauthorized use by anyone who obtained access to the Zesty.io Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use.  Subscriber will cooperate and assist with any actions taken by Zesty.io to prevent or terminate unauthorized use of the Zesty.io Services or Documentation.

2.10 Reservation of Rights.  Zesty.io grants to Subscriber a limited right to use the Zesty.io Software and Documentation during the term of this Agreement as set forth in Section 2.1 and Section 2.2.  Subscriber will not have any rights to the Zesty.io Services or Documentation except as expressly granted in this Agreement.  Zesty.io reserves to itself all rights to the Zesty.io Services and Documentation not expressly granted to Subscriber in accordance with this Agreement, including but not limited to the right to update, improve, and revise the appearance, content, and functionality of the Zesty.io Services.  For clarity, the Zesty.io Services and Documentation are not Deliverables and are not subject to the license grant set forth in Section 2.5.

2.11  Third Party Rights.  The Zesty.io Software may include Third Party Technology that is subject to open source, freeware or pass through commercial licenses and/or notices (“Third Party Licenses”) that Zesty.io is required to distribute with or make available in connection with the Zesty.io Software.  Subscriber’s right to install (have installed), use or access Third Party Technology may be subject to Subscriber’s agreement to and execution of one or more separate Third Party Licenses.  Subscriber agrees to execute such Third Party Licenses prior to installing (having installed), using or accessing such Third Party Technology.  Third Party Licenses are available to Subscriber in files distributed or provided with or as part of the Zesty.io Software, in any format (including by URL link) in the Documentation that accompanies the Zesty.io Software or via a supplementary list provided by Zesty.io.  Subscriber shall not remove these Third Party Licenses.  Any covenants, representations, warranties, indemnities and other commitments with respect to the Zesty.io Software in this Agreement, if any, are made by Zesty.io and not by any authors or suppliers of, or contributors to, such Third Party Technology.  This Agreement does not modify or abridge any rights or obligations that Subscriber and its Authorized Users may have under the Third Party Licenses applicable to such Third Party Technology.  Any use or distribution of Third Party Technology outside of their licensed use and distribution with the Zesty.io Software under this Agreement, is subject solely to the rights and obligations under the applicable Third Party License.  Any Third Party Technology that is separate from, but delivered with, the Zesty.io Software, if any, is provided and licensed solely under the applicable Third Party License. 

3.  FEES AND PAYMENT

3.1   Fees and Payment Terms.  Subscriber will pay Zesty.io the Fees and any other amounts owing under this Agreement, as set forth in this Agreement, SOW, or purchase order.  Subscriber will pay all amounts due based on the terms in your contract.  Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.  All amounts payable under this Agreement are denominated in the currency stated in your contract, and Subscriber will pay all such amounts in that currency. Payments shall be made via the payment method on your contract.

3.2   Taxes.  Other than net income taxes imposed on Zesty.io, Subscriber will bear all applicable taxes, duties, and other governmental charges resulting from this Agreement.

 

4.  SUBSCRIBER DATA; FEEDBACK

4.1   Prohibited Data.  Subscriber may not use the Zesty.io Services to process or store any (a) protected health information, (b) social security numbers, (c) account numbers of credit, debit, or bank accounts, (d) information or images that are unlawful for Subscriber or Zesty.io to transmit or possess, in each case under the laws and regulations of the United States, or (e) in each case, any similar or analogous information under the laws and regulations applicable in any country in which Subscriber uses Zesty.io Services.  Subscriber will not use the Zesty.io Services to process or store any information that violates the applicable policies of the third party provider of Subscriber’s Server and the Zesty.io Acceptable Use Policy, as Zesty.io may issue from time to time.

4.2   Consent and Authority.  Subscriber will not use the Zesty.io Services to process or store data about individuals unless Subscriber has the necessary consent, authorization, or permission, as appropriate, from each individual who may claim any rights in the data, including privacy rights, unless an applicable law does not require such consent, authorization or permission.

4.3   Takedown.  In the event that Zesty.io receives complaint, inquiries, or notices regarding alleged infringement or illegality of data processed or stored by Subscriber using Zesty.io Services, Zesty.io may, within 30 days notice to Subscriber, block access to or remove such data from the Zesty.io Services.

4.4   Privacy.  Zesty.io respects the privacy of Subscriber data.  In addition to the rights under Section 2.3, Zesty.io may use Subscriber’s data processed or stored by Subscriber using Zesty.io Services in aggregated, de-identified format for internal business purposes.

4.5   Feedback.  If Subscriber provides any comments or feedback to Zesty.io concerning the functionality, features, or performance of the Zesty.io Services (including identifying potential errors and improvements), Subscriber hereby assigns to Zesty.io all right, title, and interest in and to such feedback, and Zesty.io is free to use and exploit such feedback in any manner without compensation or restriction.  Zesty.io will not publicly attribute such feedback to Subscriber for any marketing or advertising purposes, without Subscriber’s prior, written consent. 

5.  TERM AND TERMINATION

5.1   Term.  Your Agreement will commence upon the Effective Date and continue the term stated in your contract.  

5.2   Termination.  This Agreement may be terminated (a) by the non-breaching party 90 days after the other party’s receipt of written notice from the non-breaching party of any failure to perform, when due, any term or condition of this Agreement, unless such failure or performance is corrected to the reasonable satisfaction of the non-breaching party within such 90 day period; (b) by either party immediately upon written notice to the other party if such other party files for bankruptcy or voluntary reorganization, or ceases to do business in the ordinary course, or undergoes a liquidation or dissolution; or (c) by Subscriber with 60 days prior written notice.  If Subscriber fails to timely pay any Fees, Zesty.io may, without limitation to any of its other rights or remedies, suspend performance of the Zesty.io Services (including disabling Subscriber’s access to the Zesty.io Software by technical means) until it receives all amounts due.  This Agreement will automatically renew for an additional successive one-year term unless either party provides written notice to the other party 60 days before the end of the then-current term that it does not want to renew. 

5.3   Post-Termination Obligations.  If this Agreement expires or terminates for any reason, (a) Subscriber will pay to Zesty.io any Fees or other amounts that have accrued prior to the effective date of expiration or termination, (b) Subscriber and its Authorized Users immediately stop using the Zesty.io Software and allow Zesty.io to access Subscriber’s Server for 30 days solely for the purpose of uninstalling the Zesty.io Software, for clarity, the aforementioned will not limit Zesty.io’s right to disable Subscriber’s access to the Zesty.io Software by technical means.  and the following provisions will survive the expiration or termination of this Agreement: Sections 1, 2.6 through 2.11, 4.5, and 5.3 through 10.

6.  REPRESENTATIONS; DISCLAIMERS

6.1   Mutual Representations.  Each party represents to the other party that: (a) each party is a business entity duly organized and in good standing; (b) each party’s execution, delivery and performance of this Agreement has been duly authorized by such party; and (c) this Agreement constitutes a legal, valid and binding obligation enforceable against each party in accordance with its terms.  The foregoing representations will remain in effect throughout the term of this Agreement.

6.2   Disclaimer.  THE Zesty.io SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND Zesty.io DOES NOT WARRANT THAT THE FUNCTIONS OR FEATURES CONTAINED WITHIN THE Zesty.io SERVICES WILL MEET SUBSCRIBER REQUIREMENTS, OR WILL OPERATE IN ANY COMBINATION WHICH MAY BE SELECTED FOR USE BY SUBSCRIBER, OR THAT OPERATION OF THE Zesty.io SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THAT DATA STORED BY THE Zesty.io SERVICES WILL BE AVAILABLE OR SAFE FROM LOSS, OR THAT ALL DEFECTS THAT MAY EXIST IN THE Zesty.io SERVICES WILL BE CORRECTED.  THE REPRESENTATION IN SECTION 6.1 IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, AND Zesty.io DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, AND ACCURACY.  NOTWITHSTANDING ANY FAILURE OF THE PURPOSE OF ANY LIMITED REMEDY, Zesty.io’S ENTIRE LIABILITY FOR BREACH OF WARRANTY AND FAILURE TO CURE AS PROVIDED HEREIN WILL BE LIMITED TO THE TECHNICAL SUPPORT SERVICES. 

7.  INDEMNIFICATION BY Zesty.io

7.1   Defense of Infringement Claims.  Zesty.io will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against Subscriber alleging (a) breach of this Agreement, (b) breach of confidentiality, or (c) that Subscriber’s use of the Zesty.io Software infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if:  Subscriber gives Zesty.io prompt written notice of the Claim;  Subscriber grants Zesty.io full and complete control over the defense and settlement of the Claim;  Subscriber provides assistance in connection with the defense and settlement of the Claim as Zesty.io may reasonably request;  Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Zesty.io Software); and Subscriber does not defend or settle the Claim without Zesty.io’s prior written consent.  Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Zesty.io will have sole control over the defense and settlement of the Claim so long as such settlement does not include any admission of fault, culpability, or a failure to act.

7.2   Indemnification of Infringement Claims.  Zesty.io will indemnify Subscriber from and pay all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 7.1;  all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without Zesty.io’s consent after Zesty.io has accepted defense of the Claim); and all amounts that Zesty.io agrees to pay to any third party to settle any Claim under Section 7.1.

7.3   Exclusions from Obligations.  Zesty.io will have no obligation under this Section 7 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Zesty.io Software in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination;  the Zesty.io Software is provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications;  use of the Zesty.io Software by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber;  Subscriber’s failure to use the Zesty.io Software in accordance with instructions provided by Zesty.io, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Zesty.io Software not made or authorized in writing by Zesty.io where such infringement or misappropriation would not have occurred absent such modification.  If the Zesty.io Software is, or in Zesty.io’s reasonable opinion is likely to become, enjoined or materially diminished as a result of an infringement or misappropriation claim, then Zesty.io shall, in its sole discretion, either: (i) obtain for Subscriber the right to continue to use the Zesty.io Software; or (ii) modify the Zesty.io Software so that it becomes non-infringing; or (iii) in the event that options (i) and (ii) above are not commercially reasonable, terminate the license or right to use the Zesty.io Software with respect to the infringing components of the Zesty.io Software without any further obligation to Subscriber.

7.4   Limited Remedy.  This Section 7 states Zesty.io’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Zesty.io Software.

8.  INDEMNIFICATION BY SUBSCRIBER

8.1   Defense.  Subscriber will defend Zesty.io from any Claim arising out of or based upon Subscriber’s breach of any of the provisions of this Agreement or Subscriber’s use of the Zesty.io Software or Documentation in violation of this Agreement, if:  Zesty.io gives Subscriber prompt written notice of the Claim;  Zesty.io grants Subscriber full and complete control over the defense and settlement of the Claim;  Zesty.io provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request;  Zesty.io complies with any settlement or court order made in connection with the Claim; and Zesty.io does not defend or settle the Claim without Subscriber’s prior written consent.  Zesty.io will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.

8.2   Indemnification.  Subscriber will indemnify Zesty.io from and pay all damages, costs, and attorneys’ fees finally awarded against Zesty.io in any Claim under Section 8.1;  all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Zesty.io in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 8.1.

 

9.  LIMITATIONS OF LIABILITY

9.1   Disclaimer of Indirect Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT AND EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, AND OR NON-COMPLIANCE WITH SECTION 5.4, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OR UNAVAILABILITY OF DATA, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

9.2   Cap on Liability.  EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO ZESTY.IO DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS OR CIRCUMSTANCES FROM WHICH THE CLAIM AROSE.

9.3   Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ZESTY.IO TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.  THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

10. CONFIDENTIALITY

10.1 Definition. “Confidential Information” means all information or materials furnished by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) orally, or in written or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. In addition, Confidential Information shall include any information from the Disclosing Party that the Receiving Party should have reasonably known to be confidential or proprietary information of the Disclosing Party under the circumstances of disclosure. Notwithstanding the foregoing, the following will not constitute Confidential Information for the purposes of this Agreement: (i) information which is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party in breach of this Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the Receiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a confidentiality obligation to the Disclosing Party; and (iv) information that is independently developed by representatives of the Receiving Party who did not refer to the Confidential Information.

10.2 Duty of Confidentiality. Each party agrees to hold in strict confidence the terms of this Agreement and all information provided to the other in connection with the performance of their respective obligations under this Agreement, including, without limitation, financial and business information, except to the extent that disclosure is required by applicable law.  In the event that a court requires disclosure of confidential information of the Disclosing Party, the Receiving Party shall provide notice to the Disclosing Party sufficient for the Disclosing Party to seek a limitation order.  Notwithstanding the above, the terms and conditions of this Agreement must not be disclosed to any third-party without the prior written consent of the other party, except either party may disclose the terms and conditions of this Agreement to its employees, professional advisors, agents or independent contractors who require knowledge of the terms and conditions of this Agreement, so long as such individuals are subject to applicable non-disclosure agreements. The Receiving Party shall remain liable for its employees, professional advisors, agents or independent contractors use or disclosure of Disclosing Party’s Confidential Information. Upon expiration or termination of this Agreement or at the Disclosing Party’s written request, the Receiving Party shall return Disclosing Party’s Confidential Information. Each party agrees that any remedy at law for a breach of this Confidentiality provision shall be inadequate and that such breached party shall be entitled to injunctive relief.

10.3 Data Retention. Notwithstanding the foregoing or anything to the contrary herein, Receiving Party shall be permitted to retain copies of Disclosing Party’s Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes, and Receiving Party will not be required to search archived electronic back-up files of Receiving Party’s computer systems for Disclosing Party’s Confidential Information in order to purge Disclosing Party’s Confidential Information from Receiving Party’s archived files; provided further, that any Confidential Information so retained will (i) remain subject to the obligations and restrictions contained in this Agreement, (ii) will be maintained in accordance with Receiving Party document retention policies and procedures, and (iii) Receiving Party will not use the retained Confidential Information for any other purpose.

11. GENERAL

11.1 Relationship.  Zesty.io will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.

11.2 Governing Law; Venue.  This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to conflict of laws provisions.  All disputes arising out of or relating to this Agreement will be finally settled by arbitration conducted in San Diego, California under the rules of commercial arbitration of the American Arbitration Association (“Rules”).  The parties will bear equally the costs of the arbitration (exclusive of legal fees and expenses of the parties, all of which each party will bear separately).  The arbitration will be conducted by three arbitrators selected in accordance with the Rules.  All decisions of the arbitrators will be final and binding on both parties and enforceable in any court of competent jurisdiction.  Notwithstanding the foregoing, in the event of breach by a party of its obligations hereunder, the non-breaching party may seek injunctive or other equitable relief in any court of competent jurisdiction.  Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement will be only in a California state or United States federal court located in San Diego, California, and the parties hereby consent to the jurisdiction and venue of such courts.  In any action between the parties to enforce any of the terms of this Agreement, the prevailing party will be entitled to recover reasonable expenses, including reasonable attorney’s fees.

11.3 Assignability.  Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.

11.4 Subcontractors.  Zesty.io may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Zesty.io remains responsible for all of its obligations under this Agreement.

11.5 Notices.  Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed, or sent via email at the address listed below.  Either party may change its address for receipt of notice by notice to the other party in accordance with this section.  Notices are deemed given two business days following the date of mailing or one business day following delivery to a reputable courier.

 

11.6 Force Majeure.  Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including, without limitation, acts of God, acts of war, telecommunications or power outages, failures of the public internet, strikes, riots, floods, earthquakes, fires and explosions, so long as that party uses all commercially reasonable efforts to resume performance.

11.7 Waiver.  Any waiver of any right or remedy or limit on liability under this Agreement must be in writing and signed by the party to be bound to be effective.  The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.  The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

11.8 Severability.  If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, then the remaining provisions of this Agreement will nevertheless be given full force and effect.

11.9 Entire Agreement.  This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Zesty.io Services.  This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior confidentiality, nondisclosure, or comparable agreement between the parties executed prior to this Agreement being executed.  No employee, agent, or other representative of Zesty.io has any authority to bind Zesty.io with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement.  No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.  This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.  Zesty.io will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, purchase order, confirmation, correspondence, or otherwise, unless Zesty.io specifically agrees to such provision in writing and signed by an authorized agent of Zesty.io.  In the event of any conflict between the terms of this Agreement and the terms of any purchase order or SOW, the terms of this Agreement will prevail.

11.10 Counterparts.  This Agreement may be executed in counterparts, each of which will be deemed an original, but both of which will constitute the same instrument.  This Agreement may also be executed and delivered electronically and such execution and delivery will have the same force and effect of an original document with original signatures