ZeetaPro SOFTWARE AS A SERVICE Agreement
Software Service: VideoQual
Version V.1.122021
VideoQual is an online service owned and offered by ZeetaPro Inc. that allows subscribers of the service to collect, store, process, manage, review, download and transfer video files from authorized users.
1. Acceptance of Terms and Conditions
Please read this ZeetaPro Software as a Service agreement ("agreement") carefully before continuing with the registration and subscription process of VideoQual. By checking the box to indicate that you have read and understood the agreement and agree to the terms and conditions, and then clicking the "NEXT" button, you agree to follow and be bound by the terms and conditions of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions of this agreement and, in such event, "you" and "your" as used in this agreement shall refer to such entity. If you do not have such authority, or if you do not agree to all the terms and conditions in this agreement, you must select the "CANCEL" button and may not use the services.
2. Additional Definitions
(a) "Authorized User" means those individuals (a)who are authorized by You to access and use the Services under the rights granted toYou pursuant to this agreement; and (b) for whom access to the Services has been purchased underthis agreement.
(b) "Services" means ZeetaPro's cloud-based video submission management services and relatedtechnologies, "VideoQual", which are accessible through the VideoQual web application and mobile application, all software, data,reports, text, images, sounds, video, and content made available through any of the foregoingwhich is offered as software as a service as described in the Subscription Form and any new featuresadded or augmented to the Services.
(c) "Subscription Form" means the provisions for Your purchase of the Services, which You executed to purchase the Services and is incorporated here by reference.
(d) "Service Usage Analytics Data" means data and information related to Yours, an Authorized User'sor an Authorized User's use of the Services, where such data cannot be sourced back to You, Authorized Users, or Authorized Usersincluding use for statistical and performance information, optimization information, andmarketing insights or reports related to the provision and operation of the Services, provided suchdata and information is used for ZeetaPro's business purposes.
(e) "Your Data" means all information, data, and other content, in any form or medium,that resides within your service environment and is processed by ZeetaPro on behalf of You under or in connection with the agreement,whether supplied by You or an Authorized User, or otherwise, and all intellectual property rights inthe foregoing. Your Data includes reports generated by the Services based on previouslyexisting Your Data. It should be noted that Your Data does not include Service Usage AnalyticsData, ZeetaPro IP, or any other information reflecting the access or use of the Services by or onbehalf of You or any Authorized User.
(f) "Authorized User Data" means all information, data, and other content, in any form or medium,that is submitted, transferred, transmitted, or otherwise sent, directly or indirectly from an Authorized User by or through the Services, including but not limited to, data, images, videos, audio,documents, and text in any form or medium that is submitted, posted, or otherwise transmitted byor on behalf of an Authorized User or through the Services and anything captured, stored, or reproducedas a result of the foregoing, and all intellectual property rights in any of the foregoing.
(g) "Documentation" means any manuals, Authorized User documentation, technical and systemdocumentation, instructions, or other documents or materials that ZeetaPro provides or makesavailable to You in any form or medium and which describe the functionality, components,features, or requirements of the Services or ZeetaPro IP, including any aspect of theinstallation, configuration, integration, operation, use, support, or maintenance of the foregoing.
(h) "ZeetaPro IP" means the Services, the Documentation, and any and all intellectualproperty provided or used by ZeetaPro or any Subcontractor in connectionwith the Services or otherwise comprise or relate to the Services or ZeetaPro's informationtechnology infrastructure and all intellectual property rights in any of the foregoing. For theavoidance of doubt, ZeetaPro IP also includes Service Usage Analytics Data and any information, data, or othercontent derived from ZeetaPro's monitoring of Yours, an Authorized User's, or Authorized User'saccess to or use of the Services, but does not include Your Data.
(i) "Third-Party Materials" means materials and information, in any form or medium,including any open-source or other software, documents, data, content, specifications, products,equipment, or components of or relating to the Services that are not proprietary to ZeetaPro.
3. Access and Use
(a) Provision of Access- Upon ZeetaPro's acceptance of your order and for the duration of the services term as applicable, you have the nonexclusive, non-assignable, royalty free limited right to use the services solely for your internal business operations and subject to the terms of the agreement. You may allow your Authorized Users to use the services for this purpose and you are responsible for your users' compliance with the agreement. The services are provided as described in, and subject to, the services policies. Youand your Authorized Users shallprovide ZeetaPro with certain registration information, all of which must be accurate andupdated as appropriate. You may not (i) select access credentials of another person with theintent to impersonate that person; (ii) use access credentials in which another person has rightswithout such person's authorization; or (iii) use access credentials that ZeetaPro, in itsreasonable discretion, deems offensive. The total number of Authorized Users will not exceed thenumber set forth in the Subscription Form, as or if applicable.
(b)Documentation License- ZeetaPro hereby grants to You a non-exclusive, non-sublicensable, non-transferable (except in compliance with the Assignment Section, below) licenseto use the Documentation during the Term solely for Your internal business purposes inconnection with its use of the Services.
(c) Use Restrictions- You shall not use the Services for any purposes beyond the scope ofthe access granted in this agreement and the terms and conditions of the Subscription Form. You shallnot at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy,modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent,lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise makeavailable the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode,adapt, or otherwise attempt to derive or gain access to any software component of the Services, inwhole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) usethe Services or Documentation in any manner or for any purpose that infringes, misappropriates,or otherwise violates any intellectual property right or other right of any person, or that violatesany applicable law; (vi) bypass or breach any security device or protection used by the Services oraccess or use the Services other than by an Authorized User through the use of his or her ownthen-valid access credentials; (vii) input, upload, transmit, or otherwise provide to or through theServices any information or materials that are unlawful or injurious, or contain, transmit, oractivate any harmful code; (viii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services; or (ix) access or use the Services in anymanner or for any purpose to store or transmit unlawful material,obscene, pornographic, or defamatory content.
(d) Reservation of Rights- ZeetaPro reserves all rights not expressly granted to You inthis agreement. Except for the limited rights and licenses expressly granted under this agreement, nothing inthis agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third-party anyintellectual property rights or other right, title, or interest in or to ZeetaPro IP.
(e) Suspension or Termination- ZeetaPro may, directly or indirectly suspend, terminate, orotherwise deny Yours, any Authorized User's, or any other person's access to or use of all orany part of the Services without incurring any resulting obligation or liability, if: (i) ZeetaProreceives a judicial or other governmental demand or order, subpoena, or law enforcement requestthat expressly or by reasonable implication requires ZeetaPro to do so; or (ii) ZeetaProbelieves, in its good faith discretion, that: (1) You or any Authorized User has failed tocomply with any material term of this agreement or the Subscription Form, or accessed or used the Servicesbeyond the scope of the rights granted or for a purpose not authorized under this agreement or in anymanner that does not comply with any material instructions or requirements of theDocumentation; (2) You or any Authorized User is, has been, or is likely to be involved in anyfraudulent, misleading, or unlawful activities relating to or in connection with any of the Services;or (iii) this agreement expires or is terminated (any such suspension described in subclause (i), (ii), or(iii), a "Services Suspension"). This Section does not limit any of ZeetaPro's other rights orremedies, whether at law, in equity, or under this agreement. ZeetaPro shall use commerciallyreasonable efforts to provide written notice of any Services Suspension to You and to provideupdates regarding resumption of access to the Services following any Services Suspension.ZeetaPro shall use commercially reasonable efforts to resume providing access to the Servicesas soon as reasonably possible after the event giving rise to the Services Suspension is cured.ZeetaPro will have no liability for any damage, liabilities, losses (including any loss of data orprofits), or any other consequences that You or any Authorized User may incur as a result ofa Services Suspension.
(f) Transmission and Storage of Data- Youagree that the operation of the Services,including Your Data, may involve (i) transmissions over various networks; (ii) changes toconform and adapt to technical requirements of connecting networks or devices; and (iii)transmission to ZeetaPro's third-party vendors and hosting partners to provide the necessarytechnology required to operate and maintain the Services.
(g) Services Usage and Data Storage- The Subscription Form sets forth Fees for designated levels ofusage, and if applicable, Authorized Users, number of seats, number of submissions, data storage, and support (eacha "Services Allocation"), including the Fees payable by You for the levels of usage and datastorage in effect as of the effective date of this agreement. Youagree that ZeetaPro has noobligation to permit You to exceed its then-current Services Allocation.
(h) Removal of Your Data- ZeetaPro may remove or disable any Your Data (i) aspermitted under this agreement; (ii) as required by applicable law; (iii) thirty (30) days after the Term; or (iv) upon Your written request.
(i) Service Usage Analytics Data- Notwithstanding anything to the contrary in this agreement, ZeetaPro maymonitor Your use of the Services and collect and compile Service Usage Analytics Data. As betweenZeetaPro and You, all right, title, and interest in Service Usage Analytics Data, and all intellectualproperty rights in Service Usage Analytics Data, belong to and are retained solely by ZeetaPro. Youacknowledge that ZeetaPro may compile Service Usage Analytics Data based on Your Data input intothe Services. Youagree that ZeetaPro may (i) make Service Usage Analytics Data publicly available incompliance with applicable law, and (ii) use Service Usage Analytics Data to the extent and in the mannerpermitted under applicable law.
(j) ZeetaPro Access- ZeetaPro has the right to monitor, if and when necessary, theuse of the Services, or Yours or Authorized User Data to (i) determine compliance with this agreement, (ii) as response to a request for technical support by or otherwise, (iii) to satisfy any law or authorizedgovernment request; or (iv) ensure performance and cyber security of the Services
(k) Hosting- ZeetaPro utilizes a third-party to provide hosting for the Services and reservesthe right to change providers.
(l) Changes to Services- ZeetaPro reserves the right, in its sole discretion, to make anychanges to the Services and ZeetaPro IP that it deems necessary or useful to: (i) maintain orenhance: (1) the quality or delivery of ZeetaPro's Services to its customers; (2) the competitivestrength of or market for ZeetaPro's Services; or (3) the Services' cost efficiency or performance;or (ii) to comply with applicable law.
4. Your Responsibilities
(a) General- Youare responsible and liable for all uses of the Services and Documentationresulting from access provided by You, directly or indirectly, whether such access or use ispermitted by or in violation of this agreement. Without limiting the generality of the foregoing, youare responsible for all acts and omissions of Authorized Users, and any act or omission by anAuthorized User that would constitute a breach of this agreement if taken by You will be deemed abreach of this agreement by You. You shall use reasonable efforts to make all AuthorizedUsers aware of this agreement’s provisions as applicable to such Authorized User’s use of the Services,and shall cause Authorized Users to comply with such provisions.
(b) Your Systems- You shall at all times during the Term: (i) set up,maintain, and operate in good repair all systems on or through which the Services areaccessed or used; (ii) provide ZeetaPro personnel with reasonable access to yoursystems as is necessary for ZeetaPro to perform the Services in accordance withthe Documentation; and (iii) provide reasonable cooperation and assistance as ZeetaPro mayreasonably request to enable ZeetaPro to exercise its rights and perform its obligations underand in connection with this agreement.
5. Service Levels and Support
(a) Service Levels- Subject to the terms and conditions of this agreement, ZeetaPro shall usecommercially reasonable efforts to make the Services available to you and your authorized users.
(b) Support- The Services include ZeetaPro’s standard customer support services inaccordance with ZeetaPro service support policies then in effect.
6. Security
(a) Data Backup- The Services are not a cloud storage service and do not replace the need forYou to maintain regular data backups or redundant data archives. Outside of ZeetaPro'sobligations under this agreement, ZeetaPro has no obligation or liability for any loss,alteration, destruction, damage, corruption, or recovery of Your Data.
(b) ZeetaPro Security- ZeetaPro shall: (i) comply with applicable laws in its creation,collection, receipt, access, use, storage, disposal, and disclosure of Your Data; (ii) only processor disclose Your Data in accordance with this agreement; (iii) implement appropriateadministrative, physical, and technical safeguards and measures designed to safeguard Your Data against unauthorized or unlawful processing, access, disclosure, loss, copying, modification,storage, reproduction, display, or distribution, and against accidental loss, misuse, destruction, ordamage (iv) process or transmit Your Data in a secure and encrypted manner; and (v) ensure theServices are materially free of any system settings or defects that would create potentialunauthorized access to or disclosure of Your Data.
(c) Your Control and Responsibility- You have and will retain sole responsibility for:(i) all your Data within your control, including its content and use; (ii) all information,instructions, and materials provided by or on behalf of You or any Authorized User inconnection with the Services; (iii) your systems; (iv) the security and use of Yours andits Authorized Users’ access credentials; and (v) all access to and use of the Services andZeetaPro IP directly or indirectly by or through the your systems or its Authorized Users’access credentials, including all results obtained from, and all conclusions, decisions, and actionsbased on, such access or use.
(d) Access and Security- You shall employ all physical, administrative, and technicalcontrols, screening, and security procedures and other safeguards necessary to: (i) securelyadminister the distribution and use of all access credentials and protect against any unauthorizedaccess to or use of the Services; and (ii) control the content and use of Your Data underYour control.
7. Fees and Payment
(a) Fees- You shall pay ZeetaPro the fees set forth in the Subscription Form ("Fees") or asotherwise explained in this agreement in accordance with this Section.
(b) Taxes- Youare responsible for all sales, use, and excise taxes, and any other similartaxes, duties, and charges of any kind imposed by any federal, state, or local governmental orregulatory authority on any amounts payable by You under this agreement, other than any taxesimposed on ZeetaPro's income.
(c) Payment- ZeetaPro shall charge your Credit/Debit Card on file or process payment by any other appropriate online payment procedure based on the applicable Data Usage and Storage Level and other selected Subscription features mentioned in the Subscription form. Your card or account will be charged on a monthly basis after the monthly charges have been determined by the system. The payments will be processed in US dollars as per the charges shown in US dollars in your monthly bills.
(d) Payment Failure- You shall be responsible to update the payment information including the Credit / Debit card information and online transfer information, as applicable, so that the due payment can be processed. It will be your responsibility to keep the payment information updated at all times and proactively update the information to avoid payment failure for subscription. However, if payments cannot be processed based on the payment information provided by you on the online subscription form and / or the Credit / Card on file is declined by the payment processing company, you will be notified by such payment failure. You will then have to update the payment information such that your card on file can be charged within 3 days after the first failure in processing payment. If You fail to make any payment under this agreement when due then, inaddition to all other remedies that may be available: (i) ZeetaPro may charge interest on the past due amount at the rate of 1.5% permonth calculated daily and compounded monthly or, if lower, the highest rate permittedunder applicable law;
(ii) You shall reimburse ZeetaPro for all reasonable costs incurred byZeetaPro in collecting any late payments or interest, including attorneys’ fees, courtcosts, and collection agency fees; and(iii) if such failure continues for ten (10) days following written notice, ZeetaPro maysuspend performance of the Services until all past due amounts and interest have beenpaid, without incurring any obligation or liability to You or any other person byreason of such suspension.
(e) Payment Disputes- You shall notify ZeetaPro in writing of any dispute with anyFee invoice, along with substantiating documentation, within thirty (10) days after the payment has been processed. You will be deemed to have accepted all Fee requests for whichZeetaPro does not receive timely notification of disputes and shall pay all undisputed amountsdue under such Fee requests within the periods described in this agreement.
8. Nondisclosure
By virtue of the agreement, the parties may have access to information that is confidential to one another ("confidential information"). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure. A party's confidential information shall not include information that:
- (a) is or becomes a part of the public domain through no act or omission of the other party
- (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party
- (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; r
- (d) is independently developed by the other party.
We each agree to hold each other's confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. ZeetaPro will protect the confidentiality of your data residing in the services environment in accordance with the ZeetaPro security practices specified in the services policies referenced in the ordering document. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.
9. Intellectual Property Ownership; Feedback
(a) ZeetaPro IP (Intellectual Property)- Youacknowledge that, as between You and ZeetaPro,ZeetaPro owns all right, title, and interest, including all intellectual property rights, in and toZeetaPro IP and, with respect to Third-Party Materials, the applicable third-party owns allright, title, and interest, including all intellectual property rights, in and to the Third-PartyMaterials.
(b) Your Data- ZeetaPro acknowledges that, as between ZeetaPro and You,youown all right, title, and interest, including all intellectual property rights, in and to tYour Data. You hereby grant to ZeetaPro a non-exclusive, royalty-free, worldwidelicense to perform allacts with respect to the Your Data as may be necessary for ZeetaPro to provide theServices to You, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licenseto use and display Your Data incorporatedwithin the Service Usage Analytics Data.
(c) Email Identifiers. For every email sent on behalf of You to actual or potential Authorized Users or Authorized Users via the Services, youacknowledge and agree that ZeetaProhas the right to add information and graphics that identify ZeetaPro as the sender of the emailin accordance with ZeetaPro's standard policies then in effect.
10. Representations and Warranties
(a) ZeetaPro Representations, Warranties, and Covenants- ZeetaPro represents,warrants, and covenants to You that ZeetaPro will perform the Services inaccordance with generally recognized industry standards for similar services and will devoteadequate resources to meet its obligations under this agreement. During the Term of this agreement,ZeetaPro represents and warrants to You that (i) it shall use industry standardprocedures to protect and deny unauthorized access or use of any of Your Data, or anycorruption, deletion, destruction, or loss of any of Your Data; (ii) it shall use commercially bestefforts to make the Services available 24 hours a day, 7 days a week aside from temporaryunavailability for scheduled maintenance or for unscheduled emergency maintenance, either byZeetaPro or by third-party providers, or because of other causes beyond ZeetaPro’sreasonablecontrol,(iii) it shall use commercially reasonable efforts to provide advance notice in writing or by email ofany scheduled service disruption; (iv) the Services will comply with the material functionalitydescribed in the Documentation, this agreement, and the Subscription Form and that such functionality will bemaintained in all material respects in subsequent upgrades to the Services; and (v) You must promptly provide ZeetaPro with a written notice that describes any deficiencyin the Services or the warranties contained in this Section (including, as applicable, the servicerequest number notifying ZeetaPro of the deficiency in the Services).
(b) ZEETAPRO DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT ZEETAPRO WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT ZEETAPRO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ZEETAPRO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
(c) Your Representations and Warranties- Yourepresent, warrant, and covenantto ZeetaPro that (i) Your data will not infringe, misappropriate, or otherwise violate anyintellectual property rights, any privacy or publicity, or other rights of any third-party, or violateany applicable law or other personal or proprietary right, and (ii) to the best of Yourknowledge, Your Data does not contain any matter that is defamatory, obscene, unlawful,threatening, abusive, offensive or harassing. Youown all Your Data or hasobtained all permissions, releases, rights, or licenses required to use Your Data to engage inYour posting and other activities (and allow ZeetaPro to perform its obligations) inconnection with the Services without obtaining any further releases or consents.
(d) Mutual Representations and Warranties. Each Party represents and warrants to the other
Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other
entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full
right, power, and authority to enter into and perform its obligations and grant the rights, licenses,
consents, and authorizations it grants or is required to grant under this agreement; (iii) the execution of
this agreement by its Representative whose signature is set forth at the end of this agreement has been dulyauthorized by all necessary corporate or organizational action of such Party; and (iv) when
executed and delivered by both Parties, this agreement will constitute the legal, valid, and binding
obligation of such Party, enforceable against such Party in accordance with its terms.
11. Indemnification.
(a) Indemnification by ZeetaPro.
- (i) ZeetaPro shall indemnify, defend, and hold harmless You from and againstany and all losses, damages, liabilities, costs (including reasonable attorneys' fees)("Losses" incurred by You resulting from any third-party claim, suit, action, orproceeding ("Third-Party Claim") that the Services, or any use of the Services inaccordance with this agreement, infringes or misappropriates such third-party's US intellectualproperty rights, provided that You promptly notifyZeetaPro in writing of theclaim, cooperates with ZeetaPro, and allows ZeetaPro sole authority to control thedefense and settlement of such claim.
- (ii) If such a claim is made or appears possible, youagree to permit ZeetaPro,at ZeetaPro;s sole discretion, to (A) modify or replace the Services, or component or partof the Services, to make it non-infringing, or (B) obtain the right for You to continueuse. If ZeetaPro determines that neither alternative is reasonably available,ZeetaPro may terminate this agreement, in its entirety or with respect to the affectedcomponent or part, effective immediately on written notice to You.
- (iii) This Section 12(a) will not apply to the extent that the alleged infringement arisesfrom: (A) use of the Services in combination with data, software, hardware, equipment, ortechnology not provided by ZeetaPro or reasonably anticipated to be used in combinationwith the Services; (B) modifications to the Services not made by ZeetaPro; (C) Data (except for Losses accrued due to ZeetaPro's action or inaction related to YouData); or (D) Third-Party Materials.
(b) Indemnification by You.
- You shall indemnify, hold harmless, and, at ZeetaPro'soption, defend ZeetaPro from and against any Losses resulting from any Third-Party Claimthat Your use of the Your Data infringes or misappropriates such third-party'sintellectual property rights and any Third-Party Claims based on Yours or any AuthorizedUser's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized bythis agreement; (iii) use of the Services in combination with data, software, hardware, equipment ortechnology not provided by ZeetaPro or reasonably anticipated to be used in combination withthe Services; (iv) modifications to the Services not made by ZeetaPro; or (v) materials orinformation (including any documents, data, specifications, software, content, or technology)provided by or on behalf of You or any Authorized User, including ZeetaPro's compliancewith any specifications or directions provided by or on behalf of You or any Authorized User,provided that You may not settle any Third-Party Claim against ZeetaPro unlessZeetaPro consents to such settlement, and further provided that ZeetaPro will have theright, at its option, to defend itself against any such Third-Party Claim or to participate in thedefense thereof by counsel of its own choice.
(c) Sole Remedy.
THIS SECTION 11 SETS FORTH YOUR SOLE REMEDIES ANDZEETAPRO'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED,OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OROTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.
12. Limitations of Liability
TO THE GREATEST EXTENT ALLOWED BY LAW, IN NO EVENTWILL ZEETAPRO BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANYLEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDINGNEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL,INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b)INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES,OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS,INTERRUPTION, DELAY OR RECOVERY OF ANY DATA; OR (e) COST OF REPLACEMENT GOODSOR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ZEETAPRO WAS ADVISED OFTHE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WEREOTHERWISE FORESEEABLE. IN NO EVENT WILL ZEETAPRO’S AGGREGATE LIABILITYARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY,INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ZEETAPRO UNDER THIS agreement INTHE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $200.00,WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OFITS ESSENTIAL PURPOSE.
13. Term and Termination.
(a) Term. The term of this agreement commences as of the effective date of this agreement and, unless
terminated earlier pursuant any of the agreement's express provisions, will continue in effect until the
later of (i) the date specified in the Subscription Form; or (ii) so long as You have access to theServices (the "Term").
(b) Termination. In addition to any other express termination right set forth in this agreement:
(i) ZeetaPro may terminate this agreement, effective on written notice to You, ifYoufail to pay any Fees, and such failure continues more than twenty (20) daysafter ZeetaPro's delivery of written notice to You;
(ii) You may terminate this agreement at any time, effective on written notice toZeetaPro;
(iii) Except as provided in subsection (i), either Party may terminate this agreement, effective onwritten notice to the other Party, if the other Party materially breaches this agreement, and suchbreach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30)days after the non-breaching Party provides the breaching Party with written notice of suchbreach; and
(iv) Either Party may terminate this agreement, effective immediately upon written notice to theother Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails topay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary orinvoluntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to anyproceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeksto make a general assignment for the benefit of its creditors; or (iv) applies for or hasappointed a receiver, trustee, custodian, or similar agent appointed by order of any court ofcompetent jurisdiction to take charge of or sell any material portion of its property orbusiness.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this agreement,You shall immediately discontinue use of the Services and ZeetaPro IP, and Youshall delete, destroy, or return all copies of ZeetaPro IP and certify in writing to ZeetaProthat ZeetaPro IP has been deleted or destroyed. No expiration or termination will affectYour obligation to pay all Fees that may have become due before such expiration ortermination, or entitle You to any refund. Unless You terminates for ZeetaPro’smaterial breach, all Fees that would have become payable had the agreement remained in effect untilexpiration of the Term will become immediately due and payable, and You shall immediatelypay such Fees, together with all previously-accrued but not yet paid Fees. For thirty (30) daysfollowing any termination of this agreement or upon Your request, at no additional cost toYou, ZeetaPro shall allow You or a third-party nominated by You to downloadany Your Data, unless applicable law requires otherwise.
(d) Survival. The sections dealing with Confidential Information, intellectual property, and any
right or obligation of the Parties in this agreement which, by its express terms, nature, or context is
intended to survive termination or expiration of this agreement, shall continue indefinitely and shall
survive any termination or expiration of this agreement.
14. U.S. Government Rights
You may not remove or export from the United States or allowthe export or re-export of the Services or anything related to the Services, or any direct product of theServices in violation of any restrictions, laws, or regulations of the United States Department ofCommerce, the United States Department of Treasury Office of Foreign Assets Control, or any otherUnited States or foreign agency or authority.
15. Changes to this agreement
Any changes to this agreement regarding: (i) a material decrease in Yourrights or ZeetaPro's obligations relating to pricing, functionality, or availability of the Services underthis agreement; (ii) a material increase in the Your obligations or ZeetaPro's rights relating to pricing,functionality, or availability of the Services under this agreement; must be mutually agreed inwriting by ZeetaPro and You. Subject to the foregoing, ZeetaPro may unilaterally change thisagreement from time to time by informing you of such updates. The revisedterms and conditions will become effective thirty (30) days after ZeetaPro posts such changes, and ifYou uses or accesses the Services after the posting date, your access or use will constituteacceptance of the revised terms and conditions.
16. Miscellaneous
(a) Entire Agreement- This agreement, together with any other documents incorporated by reference
constitutes the sole and entire agreement of the Parties with respect tothe subject matter of this agreement and supersedes all prior and contemporaneous understandings,agreements, and representations and warranties, both written and oral, with respect to suchsubject matter.
(b) Notices- All notices, requests, consents, claims, demands, waivers, and othercommunications must be in writing and addressed to the Parties at the addresses that may bedesignated by the Party giving notice from time to time in accordance with this Section. All noticesmust be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in eachcase, return receipt requested, postage pre-paid). Except as otherwise provided in this agreement, anotice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the noticehas complied with the requirements of this Section.
(c) Force Majeure- In no event shall either Party be liable to the other Party, or be deemed tohave breached this agreement, for any failure or delay in performing its obligations under this agreement(except for any obligations to make payments), if and to the extent such failure or delay is causedby any circumstances beyond such Party’s reasonable control, including but not limited to acts ofGod, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes,labor stoppages or slowdowns or other industrial disturbances, or passage of law or any actiontaken by a governmental or public authority, including imposing an embargo.
(d) Waiver- No waiver by any Party of any of the provisions of this agreement will be effective unlessexplicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth inthis agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilegearising from this agreement will operate or be construed as a waiver thereof and (ii) no single or partialexercise of any right, remedy, power, or privilege hereunder will preclude any other or furtherexercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability- If any provision of this agreement is invalid, illegal, or unenforceable in anyjurisdiction, such invalidity, illegality, or unenforceability will not affect any other term orprovision of this agreement or invalidate or render unenforceable such term or provision in any otherjurisdiction. Upon such determination that any term or other provision is invalid, illegal, orunenforceable, the Parties shall negotiate in good faith to modify this agreement so as to affect theiroriginal intent as closely as possible in a mutually acceptable manner in order that thetransactions contemplated hereby be consummated as originally contemplated to the greatestextent possible.
(f) Governing Law; Submission to Jurisdiction. This agreement is governed by and construed inaccordance with the internal laws of the State of California, United States, without giving effect to any choice orconflict of law provision or rule that would require or permit the application of the laws of anyjurisdiction other than those of the State of California. Any legal suit, action, or proceeding arisingout of or related to this agreement or the licenses granted under this agreement will be instituted exclusivelyin the federal courts of the United States or the courts of the State of in the County of Santa Clara, and each Party irrevocably submits to theexclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment-ZeetaPro may assign this agreement without written consent of Youprovided the assignment is pursuant to a merger, consolidation, reorganization, asset or stock saleprovided the assignee remains fully liable under the terms of the agreement. Otherwise, neither Partymay assign this agreement without the prior written consent of the other. No assignment, delegation, ortransfer will relieve You of any of its obligations or performance under this agreement. Anypurported assignment, delegation, or transfer in violation of this Section is void. This agreement isbinding upon and inures to the benefit of the Parties and their respective successors and permittedassigns.
(h) Export Regulation. You shall comply with all applicable federal laws, regulations, andrules, and complete all required undertakings (including obtaining any necessary export license orother governmental approval), that prohibit or restrict the export or re-export of the Services orany Your Data outside the US.
(i) Equitable Relief- Each Party acknowledges and agrees that a breach or threatened breachby such Party of any of its obligations under Sections related to Confidential Information,intellectual property, or, in the case of You, Sections related to Use Restrictions or YouControl and Responsibility, would cause the other Party irreparable harm for which monetarydamages would not be an adequate remedy and agrees that, in the event of such breach orthreatened breach, the other Party will be entitled to seek equitable relief, including a restrainingorder, an injunction, specific performance and any other relief that may be available from anycourt, without any requirement to post a bond or other security, or to prove actual damages or thatmonetary damages are not an adequate remedy. Such remedies are not exclusive and are inaddition to all other remedies that may be available at law, in equity or otherwise.
(j) Attorneys' Fees- In the event that any action is instituted or commenced by either Partyagainst the other Party arising out of or related to this agreement, the substantially prevailing Party isentitled to recover its reasonable attorneys' fees and court costs from the non-prevailing Party.
(k) Counterparts- This agreement may be executed in counterparts, each of which shall be deemed anoriginal, but all of which together shall be deemed to be one and the same agreement. A signedcopy of this agreement delivered by facsimile, email or other means of electronic transmission, as well asphotocopies of such facsimile transmission or email correspondence shall bedeemed to have the same legal effect as delivery of an original signed copy of this agreement.
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BY USING THE SERVICES OR BY EXECUTING THE SUBSCRIPTION FORM, YOU ACCEPT ANDAGREE TO BE BOUND AND ABIDE BY THIS AGREEMENT.
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