PLEASE READ THIS AGREEMENT CAREFULLY. CLICKING ON THE “I AGREE” BUTTON, OR ACCESSING, INSTALLING OR USING ZENOTI SERVICES, AND/OR EXECUTING AN ORDER FORM INCORPORATING THIS AGREEMENT, CONSTITUES ACCEPTANCE OF THESE SERVICES TERMS AND CONDITIONS BY AN AUTHORIZED REPRESENTATIVE OF THE CUSTOMER (AS DEFINED BELOW). IF CUSTOMER DOES NOT ACCEPT THESE SERVICES TERMS AND CONDITIONS, OR DID NOT PURCHASE THE SERVICES FROM ZENOTI, CUSTOMER HAS NO LICENSE OR RIGHT TO USE THE SERVICES AND THE LIMITED WARRANTY AND INDEMNIFICATION PROVISIONS UNDER THESE TERMS DO NOT APPLY.
These Zenoti Services terms and conditions (the “Agreement”) are entered into by and between Soham Inc d/b/a Zenoti (“Zenoti”), a Washington corporation, and the Person (“Customer”) set forth on the initial order form submitted to Zenoti requesting to purchase a Subscription (“Order Form”), or accessing or using any Application or Site (including any associated Data) provided by Zenoti.
1.1) Scope of Agreement.
This Agreement governs: (a) the Application, Sites, and Zenoti Systems (the “Subscription Services”); (b) the hosting and provision of certain Subscription Services that Customer or its Authorized Users may access through any of various mediums or devices now known or developed at a later date; (c) the Professional Services; and (d) the Data. As used herein, “Services” means the Subscription Services and Professional Services. Customer agrees that use of the Services is subject to this Agreement, as may be modified or updated by Zenoti from time to time, effective upon posting of an updated version of the Agreement at www.zenoti.com/legal. Zenoti will provide Customer with a notice of any such modifications or updates via email and/or the Subscription Services, and Customer is responsible for regularly reviewing the Agreement. Continued use of the Services after any such modifications or updates shall constitute Customer’s consent to such changes.
Capitalized terms used herein shall have the meaning set forth below or as ascribed to them in this Agreement.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person.
“Aggregated Data” means data resulting from the aggregation, calculation, analysis or compilation of Customer Data and/or data from other sources, including other clients or customers of Zenoti provided that (i) such resulting data does not identify Customer as the source of any such data, and (ii) the identities of Customer and Customer’s clients are not disclosed by or discernable from the resulting data without an extraordinary amount of time or effort.
“Application” means the Zenoti products in Zenoti’s software suite offerings (e.g., appointments, billing, marketing, inventory, and employees), as specified in the Subscription, including all Updates thereto, and associated Documentation and third-party software embedded therein.
“Authorized Users” means those Persons, including without limitation, Customer’s employees, consultants, contractors, and agents (a) who are authorized to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services, or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Aggregated Data, Zenoti or third-party Data, or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Data” means any data, information, or other content, or portion or combination thereof, accessed, uploaded, posted, emailed, transmitted or otherwise provide through or associated with the Services, whether publicly posted, privately transmitted, or orally communicated. For the sake of clarity, Data may be from Zenoti, Customer, an Authorized User, or a third party.
“Data Protection Legislation” means any Law in force from time to time which implements the European Community’s Directive 95/46/EC, Directive 2002/58/EC, General Data Protection Regulation 2016/679 (“GDPR”), which shall only apply from 25 May 2018, and/or any equivalent national laws and regulations which otherwise regulate the Processing of Personal Data and is applicable to the Products or Services provided pursuant to this Agreement.
“Documentation” means any manuals, instructions, or other documents or materials that Zenoti provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Application, Site or Zenoti Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“e-Privacy Legislation” means any law or regulation in force from time to time which implements the European Community’s Directive 2002/58/EC and/or the proposed e-Privacy Regulation 2017/0003 (COD), which is intended to replace the Directive 2002/58/EC and/or any equivalent national laws and regulations which otherwise regulate direct marketing to individuals pursuant to this Agreement.
“Effective Date” means the date a Customer’s order for a Subscription comes into effect, and will be the earlier of the date (i) Customer submits the initial Order Form; (b) of last signature on the initial Order Form; or (c) as expressly stated on the initial Order Form.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Zenoti Systems as intended by this Agreement.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, service mark, trade secret, database protection, or other intellectual property or proprietary rights laws, and all similar or equivalent rights or forms of protection, recognized or enforceable in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Process” has the meaning given in the Data Protection Legislation. “Processing” and “Processed” have correlative meanings.
“Professional Services” means the set-up, implementation, and initial training services related to the Application, Sites, and Zenoti Systems, as set forth in the Subscription, along with all maintenance and support of the Application and Sites as specified herein, and any other professional services provided by or on behalf of Zenoti to Customer and its Authorized Users.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, agents, independent contractors and legal advisors.
“Site” means one or more websites, online portals, applications or other interfaces configured for or made available to Customer or its Authorized Users.
“Specifications” means the technical and operational specifications for the Services as specified in the Subscription.
“Subscription,” unless otherwise expressly agreed by the parties in writing, means the particular Subscription Services offering selected and purchased by Customer, together with the permitted number of Authorized Users, and the related Professional Services provided by Zenoti in connection with such Subscription Services.
“Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services or that interoperate with the Services, and that are not proprietary to Zenoti.
“Updates” means updates, enhancements, revisions, fixes, patches, or other changes to the Subscription Services that Zenoti makes generally available to all customers with an active Subscription, but does not include additional modules or components and other applications separately sold. Each Update is deemed a Subscription Service once placed in a production environment.
“Zenoti Materials” means the Services, Specifications, Documentation, and Zenoti Systems and any and all other Data, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Zenoti or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Zenoti Systems. For the avoidance of doubt, Zenoti Materials include Aggregated Data and any information, data, or other content derived from Zenoti’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Zenoti Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Zenoti or any Subcontractor.
“Zenoti Systems” means the information technology infrastructure used by or on behalf of Zenoti in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Zenoti or through the use of third-party services.
2.1) Delivery. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, (a) Zenoti will provide Professional Services, according to the Subscription purchased by Customer, and (b) Zenoti hereby grants to Customer a non-exclusive, non-transferable (except in compliance with Section 14.8) right to access and use the Subscription Services during the Term, solely for Customer’s internal business purposes, including access and use by Authorized Users in accordance with the terms and conditions herein, and by Customer’s Representatives, subject to the restrictions set forth herein.
2.2) Documentation License. Zenoti hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.3) Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Zenoti Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Zenoti Materials, and the Third-Party Materials are and will remain with Zenoti and the respective rights holders in the Third-Party Materials.
2.4) Changes. Zenoti reserves the right, in its sole discretion, to make any changes to the Services and Zenoti Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Zenoti’s service to its customers; (ii) the competitive strength of or market for Zenoti’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
2.5) Subcontractors. Zenoti may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
2.6) Suspension or Termination of Services. Zenoti may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Zenoti Materials, without incurring any resulting obligation or liability, if: (a) Zenoti receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Zenoti to do so; or (b) Zenoti believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights expressly granted under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (c) this Agreement expires or is terminated. This Section 2.6 does not limit any of Zenoti’s other rights or remedies, whether at law, in equity, or under this Agreement.
3.1) Fees and Payment. Customer will pay Zenoti the then-current one-time and/or recurring fees and charges associated with the applicable Subscription that Customer has ordered (”Fees”) in accordance with this Section 3. Zenoti will submit an invoice to Customer for payment of applicable Fees, in advance of provision of the Services set forth on the Order Form, on a monthly or annual basis (as requested by Customer), payable within thirty (30) days of receipt. All Fees are non‐refundable (except as otherwise set forth herein). Customer shall make all payments hereunder in US dollars by placing a Credit Card on file with Zenoti or an alternative method that Zenoti may specify in writing from time to time. If Customer believes Fees have been incorrectly charged, Customer must contact Zenoti in writing within thirty (30) days of Customer’s receipt of the invoice or payment transaction date, whichever is earlier.
3.2) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes, levies, duties and similar assessments imposed by applicable taxing authorities. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Zenoti’s income.
3.3) Billing Information. Customer will provide Zenoti with complete and accurate billing and contact information. This information includes Customer’s account or name, billing address, postal or zip code, and telephone number. Customer will update this information within ten (10) days of any change to it. If the contact information Customer has provided is false or fraudulent, Zenoti reserves the right to suspend or terminate Customer’s access to the Services in addition to pursuing any other legal remedies pursuant to Section 2.6.
3.4) Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Zenoti may charge interest on the past due amount at the rate of one and a half percent (1.5%) per month or, if lower, the highest rate permitted under applicable Law. Customer will reimburse Zenoti for all reasonable costs incurred by Zenoti in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. If Customer’s failure to timely pay continues for thirty (30) days following written notice thereof, Zenoti may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
3.5) No Deductions or Setoffs. All amounts payable to Zenoti under this Agreement shall be paid by Customer to Zenoti in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
3.6) Fee Increases. Zenoti may increase Fees at any time by providing written notice to Customer at least sixty (60) days prior to the effective date of the Fee change. In the event that Zenoti increases the Fees in accordance with this Section 3.6, or that Customer chooses to change its Subscription to enroll in a more expensive Subscription, the following terms will apply: (a) the Term of this Agreement for the Subscription affected by the Fee change will remain unchanged; (b) the Fees for the higher-priced Subscription will be prorated for the remainder of the current billing cycle.
4.1) Use Restrictions
Customer will not, and will not permit any other Person to, access or use the Services or Zenoti Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer will not, except as this Agreement expressly permits:
Zenoti reserves the right to immediately suspend or terminate Customer’s access to the Services, in addition to pursuing any other legal remedies pursuant to Section 2.6, if Customer violates the terms of this Section 4.1.
4.2) Service Usage.
5.1) Provision of Data. Customer acknowledges and agrees that any and all Data is the responsibility of the Person from whom such Data originated. Thus, Customer, and not Zenoti, is solely responsible (a) for providing all Customer Data needed from Customer for Zenoti to provide and Customer to use the Services; (b) for all Data that its Authorized Users upload, post, email, transmit, or otherwise make available via the Subscription; and (c) for the accuracy, integrity, completeness and quality of Customer Data, and Zenoti shall be entitled to rely on such Customer Data. Customer agrees that it shall evaluate, and bear all risks associated with, the use of or reliance on any Data. Under no circumstances will Zenoti be liable in any way for any Data, including any errors or omissions in any Data, or any loss or damage of any kind incurred as a result of the use of any Data. Customer will (i) ensure that all Data uploaded or provided by Customer or its Authorized Users (including the transfer, disclosure, and provision of any Data (including personal data) to Zenoti in connection with this Agreement) and all instructions provided to Zenoti regarding the handling of any Customer Data comply with applicable Law, including without limitation Data Protection Legislation and e-Privacy Legislation, and (ii) ensure that is has obtained all necessary rights to upload, use, transfer and provide any such Customer Data.
5.2) Customer Systems and Cooperation. Customer will at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Zenoti Personnel with such access to Customer’s premises and Customer Systems as is necessary for Zenoti to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Zenoti may reasonably request to enable Zenoti to exercise its rights and perform its obligations under and in connection with this Agreement.
5.3) Effect of Customer Failure or Delay. Zenoti is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
5.4) Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer will, and will cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Zenoti Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Zenoti of any such actual or threatened activity.
5.5) Compliance with Law. Customer will and will procure that its Authorized Users will use the Services only in accordance with the Specifications and Documentation, and in compliance with all applicable Law. Without limiting the foregoing, Customer will not and will procure that its Authorized Users will not (a) transmit, provide access to or display any Data to any Person that Customer or any of its Authorized Users knows would engage in unfair or deceptive practices using such Data; (b) use the Services (including any Data) in violation of any Law concerning unsolicited messages or communications, including the national law that implements Data Protection Legislation, e-Privacy Legislation, the CAN-SPAM Act, and other laws applicable to communications with individuals; or (c) interfere with or disrupt the integrity or performance of the Products or Services or related systems.
6.1) Service Levels. Subject to the terms and conditions of this Agreement, Zenoti will use commercially reasonable efforts to make the Subscription Services Available at least ninety-nine and nine tenths percent (99.9%) of the time as measured over the course of each calendar month during the Term, excluding unavailability as a result of any of the Exceptions. “Available” means the Subscription Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. “Exceptions” means any: (a) act or omission by Customer or any Authorized User, or use of Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event (defined in Section 14.9); (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Zenoti pursuant to this Agreement; (f) Scheduled Downtime (defined in Section 6.2); or (g) disabling, suspension, or termination of the Services pursuant to Section 2.7.
6.2) Scheduled Downtime. Zenoti will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Subscription Services between the hours of 10:00 p.m. and 6:00 a.m., local time for each location of the business; and (b) give Customer at least eight (8) hours prior notice of all scheduled outages of the Subscription Services (”Scheduled Downtime”) via the Subscription Services.
6.3) Service Support. The Services include Zenoti’s standard customer support services (”Support Services”) in accordance with the Subscription terms then in effect. Zenoti may amend the Support Services for a Subscription from time to time in its sole discretion.
7.1) Information Security. Zenoti will employ security measures in accordance with Zenoti’s data privacy and security policy as amended from time to time.
7.2) Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its accuracy, quality, legality, content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Zenoti Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
7.3) Access and Security. Customer will employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
8.1) Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 8.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that that is designated by a Party as confidential or that reasonably should be understood to be confidential, including information consisting of or relating to the Disclosing Party’s technology, technical information, trade secrets, know-how, business operations, business, product and marketing plans, designs, strategies, business process, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing: the Confidential Information of Zenoti specifically includes the existence and terms of this Agreement, the Services (and all components thereof), Zenoti’s Intellectual Property, and as between the parties, is owned solely by Zenoti. The Confidential Information of Customer specifically includes the Customer Data.
8.2) Exclusions. Confidential Information does not include information that[ the Receiving Party can demonstrate by written or other documentary records]: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that[, to the Receiving Party’s knowledge,] was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) [the Receiving Party can demonstrate by written or other documentary records] was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3) Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
8.4) Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.1) Zenoti Materials. Customer acknowledges and agrees that all right, title, and interest in and to the Zenoti Materials, including all Intellectual Property Rights therein, are and will remain with Zenoti (as the sole and exclusive owner thereof), subject to any applicable rights, title, and interests of the third-party providers of any Third-Party Materials embedded in or provided in connection with the Zenoti Materials. Customer further acknowledges and agrees that the Services (and all components thereof and information contained therein) are trade secrets of Vendor and/or its Affiliates. All Services (including any software contained therein) are licensed, not sold, by Zenoti to Customer, and nothing in this Agreement shall be interpreted or construed as a sale or purchase of such Services, any components thereof or Data contained therein. Customer has no right, license, or authorization with respect to any of the Zenoti Materials except Zenoti’s rights in the Aggregated Data are subject to Customer’s rights in the Customer Data, and as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 4.1. All other rights in and to the Zenoti Materials are expressly reserved by Zenoti. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Zenoti an assignment of all right, title, and interest in and to the Aggregated Data, including all Intellectual Property Rights relating thereto.
9.2) Enforcement. During the Term of this Agreement, Zenoti will have exclusive right to file or defend the Zenoti Materials against a third party’s violation of Zenoti’s Intellectual Property Rights.
9.3 )Customer Data. As between Customer and Zenoti, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.4.
9.4) Consent to Use Customer Data. Customer hereby irrevocably grants Zenoti a transferable, sublicensable, royalty-free, irrevocable license and all such other rights and permissions in or relating to Customer Data as are necessary or useful to Zenoti, its Subcontractors, and Zenoti Personnel to enforce this Agreement and exercise Zenoti’s, its Subcontractors’, and Zenoti Personnel’s rights and perform Zenoti’s, its Subcontractors’, and Zenoti Personnel’s obligations hereunder, including, without limitation, the right to (a) Process the Customer Data in connection with providing the Services; (b) modify and create derivative works from the Customer Data in connection with providing the Services; and (c) create Aggregated Data. Customer acknowledges and agrees that Zenoti may allow providers of Third-Party Materials to access Customer Data as required for the interoperation of such Third-Party Materials with the Services. Under no circumstances will Zenoti be liable in any way for any Customer Data, including any errors or omissions in any such Data, any disclosure, modification or deletion of Customer Data, or any Losses incurred as a result of any such access by providers of Third-Party Materials.
9.5) Zenoti Trademarks. Zenoti and other logos, product and service names are trademarks and service marks owned by or licensed to Zenoti or its Affiliates (the “Marks”). Customer agrees not to display or use in any manner, the Marks without the prior written permission of Zenoti or its applicable Affiliates.
10.1) Mutual Representations and Warranties. Each party represents and warrants to the other party that:
10.2) Additional Zenoti Representations, Warranties, and Covenants. Zenoti represents, warrants, and covenants to Customer that Zenoti will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar Services and will devote adequate resources to meet its obligations under this Agreement.
10.3) Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Zenoti that (a) its Authorized Users are 18 years of age or older; (b) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Zenoti and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law; (c) Customer acknowledges that the pricing provided under this agreement requires that Customer must deploy Zenoti across all locations of Customer's business, whether company owned or franchised, unless the parties mutually agree in writing to waive such requirement.
10.4) DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 AND SECTION 10.2, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, ZENOTI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ZENOTI MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11.1) Zenoti Indemnification. Zenoti shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
11.2) Customer Indemnification. Customer shall indemnify, defend, and hold harmless Zenoti and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Zenoti Indemnitee”) from and against any and all Losses incurred by such Zenoti Indemnitee resulting from any Action by a third party (other than an Affiliate of a Zenoti Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
11.3) Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel [of its choice/reasonably acceptable to the Indemnitee] to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
11.4) Mitigation. If any of the Services or Zenoti Materials are, or in Zenoti’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Zenoti Materials is enjoined or threatened to be enjoined, Zenoti may, at its option and sole cost and expense:
11.5) Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ZENOTI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND ZENOTI MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12.1) EXCLUSION OF DAMAGES. IN NO EVENT WILL ZENOTI BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2) CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ZENOTI WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF (a) ONE THOUSAND DOLLARS ($1,000.00 USD); OR (b) THE TOTAL AMOUNTS PAID TO ZENOTI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL ZENOTI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.3) EXCEPTIONS. THE LIABILITY LIMITS SET FORTH IN SECTION 12.1 AND SECTION 12.2 SHALL NOT APPLY TO: (A) THE PARTIES’ INDEMNITY OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION); (B) PERSONAL INJURY, SICKNESS OR DEATH; AND (A) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES).
13.1) Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect as may be informed or agreed between the parties as set forth in the Order Form (the “Initial Term”). Thereafter, the Term of this Agreement shall, subject to the terms herein, automatically renew for successive terms of one (1) year each (each a “Renewal Term,” and together with the Initial Term, the “Term”) under the same terms and conditions unless Zenoti provides Customer with written notice of any changes to the current terms and conditions, in compliance with this Agreement. Zenoti will renew the terms and conditions after expiration of the Initial Term or a Renewal Term, only after receiving payment of the applicable Fees for the renewed Services from Customer.
13.2) Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
13.3) Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
13,4) Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 4.1, Section 8, Section 9.4, Section 11, Section 12, Section 13.4, this Section 13.5, and Section 14.
14.1) Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
14.2) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.3) Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Zenoti may, without Customer’s consent, include Customer’s name and other indicia in its lists of Zenoti’s current or former customers of Zenoti in promotional and marketing materials.
14.4) Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement will have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 14.4):
If to Zenoti:
15395 SE 30th Place, Suite 100
Bellevue, WA 98007
Attention: Finance Department
If to Customer:
Address as provided by the customer upon registration for the software
Notices sent in accordance with this Section 14.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile [or email], ([in each case,] with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.5) Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
14.6) Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.7) Entire Agreement. This Agreement, together with Order Form and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
14.8) Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Zenoti’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Zenoti’s prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
14.9) Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement by written notice if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more. However, notwithstanding the aforesaid, Customer will not be entitled to claim a Force Majeure Event to excused performance of monetary obligations as and when such obligations fall due and have accrued to Licensor under the terms of this Agreement.
14.10) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
14.11) Attorneys’ Fees. If any action or proceeding shall be commenced to enforce or interpret this Agreement or any right arising in connection with this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party all reasonable attorneys’ fees, costs and expenses incurred by such prevailing party in connection with such action or proceeding and any negotiations to avoid such action or proceeding.
14.12) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.13) Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.14) Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington, U.S.A. without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted in the federal or state courts of the State of Washington, U.S.A. in each case located in the city of Seattle, Washington and County of King, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
14.15) Time for Claim; Waiver of Jury Trial. Regardless of any Law to the contrary, any Action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such action arose or be forever barred. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
14.16) Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 (Confidentiality) or, in the case of Customer, Section 4.1 (Use Restrictions), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.17) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.