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 10.2.
ZESTY USER TERMS AND CONDITIONS
1.1 “Zesty Services” means the web-based services provided to Subscriber by Zesty, as set forth in a subscription agreement or purchase order.
1.2 “Documentation” means Zesty-provided user documentation, in all forms, relating to the Zesty Services (e.g., user manuals, on-line help files).
2. USE OF THE ZESTY SERVICES
2.1 Use of the Zesty Services. Subject to the terms and conditions of this Agreement, Zesty 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 Services solely in connection with Subscriber’s business operations.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Zesty 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 Services in accordance with this Agreement.
2.3 Technical Support Services. For so long as Subscriber is current with its payment of the fees specified in a subscription agreement or purchase order, Zesty will use commercially reasonable efforts to provide Subscriber with technical support services relating to the Zesty Services by in-app chat or email from 9am-5pm Pacific time, Monday through Friday, excluding holidays. 2.4 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 Services or Documentation; (b) provide the Zesty 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 Services; or (d) process or store any data prohibited by Section 4.1.
2.5 Compliance with Laws. Subscriber will use the Zesty Services and Documentation in compliance with all applicable laws and regulations.
2.6 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 Zesty Services and Documentation provided by Zesty 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 Services, (b) pays fees due to Zesty for all Zesty Services used by such Authorized Users, as if such Zesty Services had been used directly by Subscriber, and (c) is financially responsible for, and defends and indemnifies Zesty 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.
2.7 Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Zesty Services and Documentation and immediately notify Zesty 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 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 to prevent or terminate unauthorized use of the Zesty Services or Documentation.
2.8 Reservation of Rights. Zesty grants to Subscriber a limited right to use the Zesty Services and Documentation as set forth in this Agreement. Subscriber will not have any rights to the Zesty Services or Documentation except as expressly granted in this Agreement. Zesty reserves to itself all rights to the Zesty 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 Services.
3. FEES AND PAYMENT
3.1 Fees and Payment Terms. Subscriber will pay Zesty the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as set forth in a subscription agreement or purchase order. Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. 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 United States dollars, and Subscriber will pay all such amounts in United States dollars.
3.2 Taxes. Other than net income taxes imposed on Zesty, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement.
4. SUBSCRIBER DATA; FEEDBACK
4.1 Prohibited Data. Subscriber may not use Zesty 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 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 Services. Subscriber will not process or store any information that violates the Zesty Acceptable Use Policy, as Zesty may issue from time to time.
4.2 Consent and Authority. Subscriber will not use Zesty 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.
4.3 Takedown. In the event that Zesty receives complaint, inquiries, or notices regarding alleged infringement or illegality of data processed or stored by Subscriber using Zesty Services, Zesty may, with due notice to Subscriber, block access to or remove such data from the Zesty Services.
4.5 Feedback. If Subscriber provides any comments or feedback to Zesty concerning the functionality, features, or performance of the Zesty Services (including identifying potential errors and improvements), Subscriber hereby assigns to Zesty all right, title, and interest in and to such feedback, and Zesty is free to use and exploit such feedback in any manner without compensation or restriction.
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence upon the Effective Date and continue for one year unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive one-year terms unless at least 90 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
5.2 Termination. This Agreement may be terminated (a) by the non-breaching party 30 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 30 day period; or (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. If Subscriber fails to timely pay any fees, Zesty may, without limitation to any of its other rights or remedies, suspend performance of the Zesty Services until it receives all amounts due.
5.3 Availability of Data. Upon Subscriber request during the 30-day period following the expiration or termination of this Agreement, Zesty will provide Subscriber with a reasonable opportunity to copy Subscriber data held by Zesty. Zesty may expunge all Subscriber data 30 days following the expiration or termination of this Agreement, or at any time thereafter.
5.4 Post-Termination Obligations. If this Agreement expires or terminates for any reason, (a) Subscriber will pay to Zesty any fees or other amounts that have accrued prior to the effective date of expiration or termination, and (b) the following provisions will survive the expiration or termination of this Agreement: Sections 1, 2.6 through 2.8, 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 SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND ZESTY DOES NOT WARRANT THAT THE FUNCTIONS OR FEATURES CONTAINED WITHIN THE SERVICE WILL MEET SUBSCRIBER REQUIREMENTS, OR WILL OPERATE IN ANY COMBINATION WHICH MAY BE SELECTED FOR USE BY SUBSCRIBER, OR THAT OPERATION OF THE ZESTY SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THAT DATA STORED BY THE ZESTY SERVICES WILL BE AVAILABLE OR SAFE FROM LOSS, OR THAT ALL DEFECTS THAT MAY EXIST IN THE ZESTY SERVICES WILL BE CORRECTED. THE REPRESENTATION IN SECTION 6.1 IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, AND ZESTY 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, ACCURACY, AND NON-INFRINGEMENT. NOTWITHSTANDING ANY FAILURE OF THE PURPOSE OF ANY LIMITED REMEDY, ZESTY’S ENTIRE LIABILITY FOR BREACH OF WARRANTY AND FAILURE TO CURE AS PROVIDED HEREIN WILL BE LIMITED TO THE REMEDIES SET FORTH WITH SUCH WARRANTY.
7. INDEMNIFICATION BY ZESTY
7.1 Defense of Infringement Claims. Zesty will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against Subscriber alleging that Subscriber’s use of the Zesty Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: (a) Subscriber gives Zesty prompt written notice of the Claim; (b) Subscriber grants Zesty full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Zesty may reasonably request; (d) 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 Services); and (e) Subscriber does not defend or settle the Claim without Zesty’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 will have sole control over the defense and settlement of the Claim.
7.2 Indemnification of Infringement Claims. Zesty will indemnify Subscriber from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 7.1; (b) 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’s consent after Zesty has accepted defense of the Claim); and (c) all amounts that Zesty agrees to pay to any third party to settle any Claim under Section 7.1.
7.3 Exclusions from Obligations. Zesty 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 (a) use of the Zesty Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Zesty Services are 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; (c) use of the Zesty Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Zesty Services in accordance with instructions provided by Zesty, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Zesty Services not made or authorized in writing by Zesty where such infringement or misappropriation would not have occurred absent such modification.
7.4 Limited Remedy. This Section 7 states Zesty’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 Services.
8. INDEMNIFICATION BY SUBSCRIBER
8.1 Defense. Subscriber will defend Zesty 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 Services in a manner that violates any law, regulation, or third-party right, if: (a) Zesty gives Subscriber prompt written notice of the Claim; (b) Zesty grants Subscriber full and complete control over the defense and settlement of the Claim; (c) Zesty provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; (d) Zesty complies with any settlement or court order made in connection with the Claim; and (e) Zesty does not defend or settle the Claim without Subscriber’s prior written consent. Zesty 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 from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Zesty in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Zesty 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, (c) 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, 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. UNDER NO CIRCUMSTANCES WILL EITHER 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 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 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.
10.1 Relationship. Zesty will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
10.2 Governing Law; Venue; Arbitration. 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.
10.3 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.
10.4 Subcontractors. Zesty may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Zesty remains responsible for all of its obligations under this Agreement.
10.5 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. 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.
10.6 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.
10.7 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.
10.8 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.
10.9 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 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 has any authority to bind Zesty 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 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 specifically agrees to such provision in writing and signed by an authorized agent of Zesty.
10.10 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.