Please read this agreement (“Agreement”) carefully before accessing or using the Zenoti Web site at www.Zenoti.com or any subdomain of Zenoti.com (the “Site”). By accessing or using the Site, you agree to be bound by this Agreement. Soham Inc (d/b/a Zenoti) (“Zenoti”) provides information and services on the Site to you, the user, conditioned on your acceptance without modification of the terms, conditions and notices contained herein. Your use of the Site constitutes your agreement to all such terms, conditions and notices. Additionally, your use of the Site is subject to the additional disclaimers and notices that may appear throughout the site and to the terms and conditions of the Liability Release Agreement discussed below.
Zenoti and its representatives assume no responsibility for any consequence relating directly or indirectly to any action or inaction that you take based on the information, services or other material on this Site or provided to you by a Zenoti representative. While Zenoti strives to keep the information on this Site accurate, complete and up-to-date, Zenoti and its representatives cannot guarantee, and will not be responsible for any damages or loss related to, the accuracy, completeness or timeliness of the information.
The Site and information and services Zenoti provides may not be used by children under the age of 18 years old.
“Licensee” means you, the subscriber/consumer to the services offered by Zenoti.
“Due Date” means the date on which a financial obligation must be paid.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Services" or "Purchased Services" means the online, Web-based applications and platform provided by Zenoti via xxx. Zenoti.com and/or other designated websites as described in the User Guide that would be ordered by Licensee.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
Zenoti shall make the Purchased Services available to Licensee pursuant to this Agreement on payment of requisite Subscription Fee for purchasing the Services according to the chosen Plan at time of purchase of the services.
Unless otherwise specified:
Zenoti Responsibilities. Zenoti shall: (i) provide standard support for the Purchased Services to Licensee at no additional charge, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Zenoti shall give at least 8 hours notice via the Purchased Services and which Zenoti shall schedule to the extent practicable during non operational hours from 10pm to 6am), or (b) any unavailability caused by circumstances beyond reasonable control. And (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
Zenoti has every right to suspend or cancel the Licensed Material if the Licensee breaches any terms and conditions of this agreement or acts strictly against the law of the land or if the licensee fails to pay the dues within 30 days of the due date.
Zenoti has a right to cancel or suspend the inactivity of the Licensed Material if the Licensed Material is being misused or breached any of the conditions of this agreement.
Zenoti may renew the license after expiry of the term only after receiving the renewal licensed fee as mutually agreed at time of Renewal.
During the terms of this agreement, Zenoti has exclusive right to file or defend the Licensed Material against the third party for the purpose of its violation of intellectual property right.
On termination of the agreement Licensor shall return all the data that has been provided to Zenoti, as per pre-defined formats provided by Zenoti.
Zenoti will not refund any amount that has been paid by the licensee if the agreement is terminated during the term of this agreement. However, any dues for used services will still be paid for the full term.
Licensee Responsibilities. Licensee shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Licensee Data and of the means by which Licensee acquired the Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Zenoti promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Licensee shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
Before using the Licensed Material the Licensee has to provide clear data regarding the details of employees/members of Licensee, who are going to use the Licensed Material with proof to Zenoti.
The Licensee is not allowed to transfer/sublicense the Licensed Material to any third party without prior approval of Zenoti.
The Licensee shall not modify, adopt or create derivative works basing upon the Licensed Material and create duplicate Licensed Material as that of the Licensed Material which is being licensed to the Licensee.
The Licensee would be provided with login credentials for the Licensed Material for the purpose of its usage and is not allowed to share the login credentials of the Licensed Material to any other third party.
The Licensee is solely and exclusively responsible for misuse of the licensed material by the third party during the term of this agreement and also responsible for its accuracy, quality and legality of the data which is being used through this Licensed Material.
The Licensee has to make all the efforts for the purpose of preventing the unauthorized access or use the Licensed Material without the knowledge of the licensee by the third parties.
The license is being given to the Licensee strictly in accordance with all the applicable laws of the land and the government regulations.
The licensee shall not store or transmit infringing or other unlawful or tortuous material or store such material or transmit the material by using this Licensed Material.
The Licensee shall not load the Licensed Material in any networked configuration that permits or enables access by the third parties via internet or any other network or otherwise.
The Licensee shall not infringe or misappropriate the Licensed Material or take any action inconsistent with the ownership rights or any other rights in the Licensed Material.
Any acquisition of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between Licensee and any third-party provider, is solely between Licensee and the applicable third-party provider. Zenoti do not warrant or support third-party products or services, whether or not they are designated by Zenoti as “certified” or otherwise, except as specified in an Order Form. Zenoti confirms that there is need for the Licensee to acquire any Third Party Services to use this Purchased Services.
Third-Party Applications for use with Purchased Services, Licensee acknowledges that Zenoti may allow providers of those Third-Party Applications to access Licensee Data as required for the interoperation of such Third-Party Applications with the Purchased Services. Zenoti shall not be responsible for any disclosure, modification or deletion of Licensee Data resulting from any such access by Third-Party Application providers.
Licensor's software services shall not send email and text messages to individuals who are marked as having opted out of receiving such messages. The accuracy of such data shall be the sole responsibility of the Licensee and the Licensor shall not be liable for the accuracy of the opt-out data.
Licensee shall pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the monthly or annual service fee associated with the Service plan that Licensee has ordered, including any additional plans for which Licensee assumes payment.
Payments may be made annually, or monthly, consistent with the Initial Term, or as otherwise mutually agreed upon. Licensee is responsible for paying for the Service ordered for the entire License Term, whether or not such Service is actively used.
Zenoti reserves the right to modify its fees at any time. Changes to Licensee Service plan or those for which Licensee assumes payment will be subject to the following:
As described on Zenoti website, each Service plan provides a maximum number of Employees that can use the said software.
Zenoti reserves the right to modify the limits applicable to various Service plans from time to time, effective upon posting at www. Zenoti.com. If Licensee exceed either of the limits applicable to the Service plan that Licensee orders, Zenoti reserves the right to charge Licensee the full Service rate for the next larger edition.
Zenoti charges and collects in advance for use of the Service. Zenoti will automatically renew and issue an invoice on Licensee (a) every month for monthly licenses, (b) each year on the subsequent anniversary for annual licenses, or (c) as otherwise mutually agreed upon.
The renewal charge will be equal to the then current service fee associated with the plan Licensee have ordered. Zenoti fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such taxes, levies, or duties.
Licensee agrees to provide Zenoti with complete and accurate billing and contact information. This information includes Licensee account or name, billing address, postal or zip code, and telephone number. Licensee agrees to update this information within 10 days of any change to it.
If the contact information Licensee have provided is false or fraudulent, Zenoti reserves the right to terminate Licensee access to the Service in addition to any other legal remedies. If Licensee believes Licensee have been incorrectly charged, Licensee must contact Zenoti in writing within 30 days of the invoice or payment transaction date, whichever is earlier.
This agreement is for such period as may be informed or agreed between the parties at the time of signing this agreement and this agreement may cancel at any time by Zenoti if the Licensee acts contrary to the terms and conditions of the agreement with a prior notice to the Licensee.
The Licensee has exclusive right to terminate the agreement within the licensed period with a prior notice of 30 days to Zenoti in writing. Licensee has to forgo for any unused days of service. Any dues for used services will still be paid. If the parties enter into a separate agreement where Licensee gives up the right of termination then this right shall not be vested in the Licensee and Licensee cannot terminate the agreement.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If the agreement terminated, due to the breach of terms by Zenoti, Licensee shall entitle to claim for refund for the un-used days of service. If the parties enter into a separate agreement where Licensee gives up the right of termination then this right shall not be vested in the Licensee and Licensee cannot terminate the agreement.
Upon Licensee request made, within 30 days after the effective date of termination of a Purchased Services subscription, Zenotishall make available to Licensee for download a file of Your Data in comma separated value (.csv) format. After such 30-day period, Zenoti shall have no obligation to maintain or provide any of Licensee Data and shall thereafter, unless legally prohibited, the Licensee be authorised Zenoti to delete all Licensee Data in Zenoti systems or otherwise in Zenoti possession or under Zenoti Control.
Subject to the limited rights expressly granted hereunder, Zenoti reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
As between Zenoti and Licensee, Licensee exclusively owns all rights, title and interest in and to all Data of Licensee.
Zenoti reserves the right to generate consolidated reports on data stored within its software offering. Zenoti will however never release data of any specific customer individually or generate reports in a manner where one could identify specific data as belonging to a specific customer.
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Confidential Information shall include individual center/client data, the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
However, Confidential Information (other than Licensee Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Without limiting the above, Zenoti shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data. Zenoti shall not (a) modify Licensee Data, (b) disclose Licensee Data except as compelled by law in accordance with Compelled Disclosure or as expressly permitted in writing by Licensee, or (c) access Licensee Data except to provide the Services or prevent or address service or technical problems, or at Licensee request in connection with customer support matters.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. 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.
Zenoti warrants that (i) The functionality of the Services will not be materially decreased during a subscription term, and (ii) Zenoti shall not transmit Malicious Code to Licensee (iii) if Licensee or a User uploads a file containing Malicious Code into the Server and later downloads that file containing Malicious Code, Zenoti shall not be liable, whatsoever.
For any breach of warranty above, the licensee’s exclusive remedy shall be as provided in the Term and Termination section.
The Licensee warrants that they have validly entered into this agreement and have the legal power to do so.
DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND THE SERVICES OFFERED AT THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Zenoti shall defend Licensee against any claim, demand, suit, or proceeding (" Claim") made or brought against Licensee by a third party alleging that the use of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Licensee for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Licensee in connection with any such Claim.
Licensee shall defend Zenoti against any Claim made or brought against Zenoti by a third party alleging that Licensee Data, or Licensee use of the Services is in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Zenoti for any damages finally awarded against, and for reasonable attorney’s fees incurred by Zenoti in connection with any such Claim. Licensee has full control and takes sole responsibility for the content of any SMS or Email messages sent by the software to its customers. Zenoti is providing Licensee the ability to send Transactional SMS messages for all appointment book transactions (i.e. appointment confirmation, cancellations and so on).
All marketing/promotional messages would, by default, still be sent out using a promotional SMS service and not a transactional SMS service unless Licensee subscribes for a Transactional SMS service for all custom promotional SMSs as well under a separate agreement. The Licensee further takes sole responsibility in ensuring that individual customer preferences of receiving SMS and Email messages are maintained accurately for its customer base. The Licensee shall take full responsibility for any SMS and Email messages sent by the Licensee or its agents using the service and software being licensed under this agreement which are in violation of any guidelines established by any government or private agency. In the event that Licensee does violate any of the government regulations of any applicable nation then Zenoti shall impose a fee equal to that imposed by the government or private agency for such violation in order to compensate Zenoti for fees and deposits that Zenoti would be required to pay such government agency upon such a violation by Licensee. All ability to send any SMS messages shall be immediately suspended and Zenoti shall give a 5 day notice to the Licensee to take care of paying such fee. If Licensee does not do so Zenoti will, without any further notice, terminate access to the software and service being provided by Zenoti to the Licensee. Thereupon the Licensee has 10 days to take care of full payment of the fee. If payment is made within this period the service shall be reactivated for the Licensee. If the Licensee still does not comply Zenoti reserves the right to delete all of the Licensee’s data from Zenoti’s system and terminate the account permanently. In this event Licensee waives all rights to its data and other information stored on Zenoti’s servers. There shall be no refunds given for any unused portion of the service due to termination or deactivation of service by Zenoti under this clause. The Licensee further agrees to hold Zenoti immune from and defend Zenoti against any and all litigation initiated against it due to any SMS or Email activity undertaken by the Licensee using Zenoti’s service and software. Furthermore after one such violation the Licensee will no longer be able to send Transactional SMS through Zenoti’stransactionalSenderId. It is further agreed that the Limitation of Liability clause shall not apply to any fee to be paid by the Licensee under this clause or related to any fees to be paid by Licensee for violations of regulations relating to SMS messages.
TRAI as well as any other government or private organization may alter its policies and regulations regarding use of SMSs. While Zenoti will try to update the Licensee regarding such modifications it shall be the responsibility of the Licensee to keep itself notified of such changes to policies and to immediately comply with such changes. The Licensee also gives Zenoti the authority to enter into any required agreements on behalf of the Licensee with third party SMS vendors, agencies, or government organizations to enable Zenoti to provide its SMS services to the Licensee.
Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $1,000 OR THE AMOUNT PAID HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Neither party shall be liable for any failure or delay in performing its part of this Agreement if such failure or delay is due to Force Majeure condition, either wholly or in part such as floods, earthquakes, fires, epidemics, war, riots, strikes or their labor, troubles, accidents to machinery, direct or indirect acts, rules, regulations, laws or orders including restrictions on export/import and other licenses passed/imposed by the Government or any other causes beyond the control of such Party. The Party affected by such Force Majeure condition shall forthwith notify the other Party of the nature and extent thereof.
If the Force Majeure condition in question prevails for a continuous period in excess of fifteen (15) days, the Parties shall enter into bona fide discussion with a view of alleviating its effect on this Agreement by such alternative as may be fair and reasonable.
If the Force Majeure condition in question prevails for a continuous period of one month either Party shall be entitled to terminate this Agreement by written notice. However, notwithstanding the aforesaid, Licensee shall not be entitled to claim non-Performance of monetary obligations as and when such obligations fall due and have accrued to Licensor in terms of this Agreement.
In the event of any provision or any rule or any law of the land determining the agreement to be invalid or unenforceable the agreement shall not remain in force as if such agreement is not executable.
As a condition of your use of the Site, you warrant to Zenoti that you will not use the Site for any purpose that is unlawful or prohibited by this Agreement. If you violate any of these terms, your permission to use the Site automatically terminates.
You may not, without the prior written permission of Zenoti, use any computer code, data mining software, “robot,” “bot,” “spider,” “scraper” or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any of the Site, data or content found on the Site or accessed through the Site.
If you use the Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If your status as a user of the Site is terminated, you (i) cease using the Site and any information obtained from the Site, and ii) destroy all copies of your account information, password and any information obtained from the Site.
Fees are not refundable. Services are not transferable and only you are authorized to use the services you purchase. Anyone who shares or reveals the information received from the services they purchase is violating the conditions of this Agreement. This will result in an automatic termination of your right to use the Site and might lead to civil liability.
Zenoti may cancel and destroy any information you have provided to Zenoti at any time after Zenoti stops providing the purchased services to you for any reason.
Zenoti may make improvements or changes to the information, services, products, and other materials on the Site, or terminate this Site at any time. Zenoti may modify this Agreement at any time, and such modifications shall be effective immediately upon posting of the modified Agreement. Accordingly, you agree to review the Agreement periodically, and your continued access or use of the Site shall be deemed your acceptance of the modified Agreement. All terms of any other agreement entered by you with Soham shall be considered void except for those terms which specify the plan chosen, the term of the agreement, the pricing agreed to for the subscription and setup by both parties, waiver of agreement termination rights or any subset of these elements.
This Agreement and the resolution of any dispute related to this Agreement or the Site shall be governed by and construed in accordance with the laws of Washington, without giving effect to any principles of conflicts of law. Failure by Zenoti to insist upon strict enforcement of any provision of this Agreement shall not be construed as a waiver of any provision or right. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Any legal action or proceeding between Zenoti and you related to this Agreement shall be brought exclusively in a federal or state court of competent jurisdiction sitting in the State of Washington. If any of the terms of this Agreement shall be deemed invalid, void, or for any reason unenforceable, that term shall be deemed severable and shall not affect the validity and enforceability of any remaining term of the Agreement.
Zenoti and other logos, product and service names are trademarks and service marks owned by or licensed to Zenoti or its affiliates (the "Marks"). Without the prior written permission of Zenoti, or its appropriate affiliates, you agree not to display or use in any manner, the Marks.