Franchisee Terms

These Franchisee Terms (“Franchisee Terms”) together with the Order Form(s) (as defined below) and any applicable supplemental terms, which by this reference are incorporated herein (together, this “Agreement”), are between Soham Inc, d/b/a Zenoti (“Zenoti”) and the entity listed on the Order Form (“Franchisee”, “you”, or “your”). This Agreement is effective as of the date the first Order Form was executed (“Effective Date”). In the event of any inconsistency or conflict between the Franchisee Terms and the terms of any Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control. The parties agree as follows:

Background

Franchisee is a participant in a franchise network (“Network”) pursuant to its franchise agreement with a franchisor (“Franchisor”). Zenoti has entered into a Master Services Agreement (as amended, modified, restated, or supplemented from time to time, the “Network Agreement”) with Franchisor and its affiliates, which provides for the possibility of Franchisee entering into this Agreement with Zenoti. Franchisee would like to utilize the products and services offered by Zenoti and procured by Franchisee under an Order Form (each a “Service” and collectively, “Services”) for its business subject to the terms and conditions of this Agreement. Zenoti seeks to provide the Zenoti solution to such Franchisee and is entering into this Agreement in reliance on Franchisee’s performance of its obligations set forth below.

1. Services

1. Services. Subject to and conditioned on Franchisee’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Zenoti will provide the Services procured by Franchisee though an Order Form; and Zenoti hereby grants to Franchisee a non-exclusive, non-transferable right to access and use the Services set forth in the applicable Order Form during the Term, solely for Franchisee’s business purposes, including access and use by Authorized Users and Representatives in accordance with the terms and conditions herein. For the purpose of this Agreement, an “Order Form” means Zenoti’s generated order form(s) or online ordering document or process completed, executed or approved by Franchisee with respect to Franchisee’s subscription to a Service, which may detail, the number of Authorized Users permitted to use a Service or other relevant usage restrictions associated with Franchisee’s subscription to the Services.

2. Locations. Use and access to the Services is granted to your brick-and-mortar location(s) of Franchisee through an executed order form (each a” Location” and collectively “Locations”). Zenoti and Franchisee may add or substitute Locations by executing additional or amending order forms, provided Franchisee pays Zenoti the Fees associated with the number of Locations as per the order forms. Franchisee acknowledges and agrees that subscriptions to the Services are location-specific and are allocated on a location-by-location basis. Franchisee may not use the Services at multiple locations unless Franchisee has procured a subscription to the Services at each location. Co-location of a single subscription is not permitted and any attempt to use the Services at an unlicensed location shall be a material breach of this Agreement.

3. Changes. Zenoti reserves the right, in its sole discretion, to make any changes to the Services 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 laws.  

4. Authorized Users. As between Franchisee and Zenoti, Franchisee is responsible for compliance with the provisions of this Agreement by Authorized Users and for any and all activities that occur under a Franchisee’s account, which Zenoti may verify from time to time. “Authorized Users” means individuals who are authorized by Franchisee to use a Service, for whom a Service has been provisioned), and to whom Franchisee or Zenoti (as applicable) has supplied a user identification and password (for Services utilizing authentication).

5. API License Terms. Any use of the Zenoti APIs are subject to the supplemental terms located in the Network Agreement.

6. Zenoti Payments. To access Zenoti Payments, you are required to enter into a separate digital agreement at the time of implementation of Zenoti Payments. (“Payments Agreement”).

2. Term

1. Subscription Term. The term of a subscription to a Service (“Subscription Term”) shall commence upon the Effective Date set forth in the initial Order Form (“Initial Order Form”) and shall continue through the later of twelve (12) months or the Subscription Term set forth in the Initial Order Form (“Initial Term”). Unless otherwise stated in an Order Form, all Subscription Terms are for a minimum of twelve (12) months, and unless expressly stated in the Order Form, each Order Form is non-cancellable and all fees paid are non-refundable except as expressly provided herein.

2. Renewal Terms. The Initial Term of an Order Form shall renew for a successive twelve (12) month renewal term (“Renewal Term”) upon expiration of the Initial Term unless the Franchisee cancels the Order Form at least thirty (30) days prior to the expiration of the Initial Term. Thereafter, each Renewal Term will automatically renew upon expiration unless Franchisee provides Zenoti with at least thirty (30) days’ written notice prior to expiration of the Renewal Term. The first Renewal Term shall be calculated from the date following the last day of the Initial Term and thereafter, each Renewal Term shall be calculated from the date following the last day of the previous Term. Fees for Renewal Terms are subject to an increase in Subscription Fees as more fully set forth in Section 4.

3. Usage Conditions and Restrictions; Suspension

1. Restrictions. Franchisee will not, and will not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of any software, documents, data, content, specifications, products, equipment, or components of the Services, in any form or medium, and that are not proprietary to Zenoti or Franchisee (“Third-Party Materials”), the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Franchisee will not and will not permit its Authorized Users to, except as this Agreement expressly permits: (i) copy, modify, or create derivative works or improvements of the Services; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any third-party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (iv) bypass or breach any security device or protection used by the Services; (v) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Zenoti information technology infrastructure, or Zenoti’s provision of services to any third party, in whole or in part; (vii) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof; (viii) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of Zenoti or any third party, or that is inconsistent with the ownership rights in and to the Services, or that violates any applicable law; (ix) access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to Zenoti’s detriment or commercial disadvantage; (x) 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 Services, data or content found on or accessed through the Services; or (xi) use the Services for any purpose that is unlawful or prohibited by this Agreement. Zenoti reserves the right to immediately suspend or terminate Franchisee’s access to the Services, in addition to pursuing any other legal remedies, if Franchisee violates the terms of this Section 3.1.

2. Suspension or Termination of Services. Zenoti may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny the access of Franchisee, Authorized User(s), Representative(s), affiliate(s), or any other person or entity’s ’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) Franchisee 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) Franchisee 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 does not limit any of Zenoti’s other rights or remedies, whether at law, in equity, or under this Agreement.

4. Payment

1. Subscription Fees. You will pay Zenoti directly the recurring fees and charges associated with the Services set forth in the applicable Order Form (collectively, “Subscription Fees”) in accordance with this Agreement. Unless otherwise specified in an Order Form, the Subscription Fees set forth in the Initial Order Form shall be effective through the Initial Term. Subscription Fees for each Renewal Term are subject to a price increase of up to ten percent (10%). For clarity, Subscription Fees shall not include any charges associated with the Zenoti Payments service, such fees shall be handled in accordance with the Payments Agreement.    

2. Add On Fees. Franchisee may choose add-ons to the Services that they wish to purchase and utilize from Zenoti. Zenoti shall bill you directly for any such additional add-ons (“Add-on Fees” and together with the Subscription Fees “Fees”).

3. Payment and Billing. Unless otherwise expressly set forth in this Agreement or the Order Form, all Fees are due in advance of provision of the Services, on a monthly basis during the applicable Subscription Term. You are responsible for providing valid and current payment information and you agree to promptly update your account information, including payment information, with any changes that may occur (for example, a change in your billing address or credit card expiration date). If You fails to pay Fees or any other charges indicated on any Order Form, within five (5) days of Zenoti’s notice to Franchisee that payment is delinquent, or if Franchisee does not update payment information upon Zenoti’s request, in addition to other remedies, Zenoti may suspend access to and use of the Services by Franchisee or Authorized Users. As permitted by applicable law, Zenoti reserves the right to charge the Franchisee late payment penalties or interest charges on any past-due invoices that are not subject to a good faith dispute as to amount owed.

4. Disputes. If you believe a Fee invoice or charge has been issued in error, you must provide Zenoti with written notice detailing the error and disputed amount ("Dispute Notice") within ten (10) days of your receipt of the invoice or charge. If Zenoti does not receive the Dispute Notice within such 10-day period, you will be deemed to have accepted such invoice or charge. A Dispute Notice does not relieve you of your obligation to pay the amount in dispute. If Zenoti, in its reasonable discretion, determines the invoice or charge was issued in error, Zenoti will refund the disputed amount, or apply the disputed amount as credit towards future Fees or other amounts payable pursuant to this Agreement.

5. Form of Payment.  Unless otherwise specifically stated in the applicable Order Form, Franchisee shall make all payments hereunder in US dollars through Zenoti’s automated clearinghouse house (“ACH”) platform and Franchisee is responsible for providing the requisite details for ACH payment prior to the provision of Services. Payment(s) made by other means may be subject to additional and/or pass through fees.  Zenoti reserves the right to require an alternative means of payment in its sole but reasonable discretion, provided Zenoti gives Franchisee sixty (60) days’ prior notice of this requirement.  

6. Taxes. All Fees and other amounts payable by you under this Agreement are exclusive of taxes, levies, duties and similar assessments imposed by applicable taxing authorities. Without limiting the foregoing, you are 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 you, other than any taxes imposed on Zenoti’s income.

7. No Deductions or Setoffs. All amounts payable to Zenoti under this Agreement shall be paid by you 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 or this Agreement).

5. Support

1. Zenoti will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week. However, Zenoti cannot guarantee that the Services will operate in an uninterrupted or error-free manner. Zenoti performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. Zenoti will use commercially reasonable efforts to notify Franchisee in advance of any scheduled downtime.  

6. Data; Privacy and Security

1. Responsibility for Franchisee Data. Franchisee acknowledges and agrees that Franchisee is solely responsible for all data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Franchisee or an Authorized User by or through the Services (“Franchisee Data”), including the provision of Franchisee Data to Zenoti for use in the Services. Without limiting the foregoing, Franchisee shall be solely responsible for the following: (a) providing all Franchisee Data needed from Franchisee for Zenoti to provide and Franchisee to use the Services; (b) obtaining and maintaining all necessary permissions, consents, authorizations, and/or opt-in confirmations necessary for Zenoti to use the Franchisee Data and to provide the Services; (c) all data that its Authorized Users upload, post, email, transmit, or otherwise make available via the Services; and (d) the accuracy, integrity, completeness and quality of Franchisee Data.  

2. DPA. The terms of the Data Processing Addendum set forth at [Link] (“DPA”) are hereby incorporated by reference and apply to the processing by Zenoti systems of Personal Data which is part of Franchisee Data and is subject to applicable data protection laws (as defined in the DPA). Unless otherwise specified in the Order Form, Franchisee and Authorized Users shall not provide or otherwise make available any Franchisee Data which contains any sensitive or special data that imposes specific data protection obligations on Zenoti in addition to or different from those specified in the DPA.d

3. HIPAA. To the extent Franchisee is subject to the US Health Insurance Portability and Accountability Act of 1996, and its implementing regulations (“HIPAA”), Franchisee may not use the Services to store or transmit any “protected health information” as defined by HIPAA, unless expressly agreed to in writing by Zenoti. Any use of the Services to process protected health information may be subject to additional requirements, including: (a) complying with any security configuration requirements provided by Zenoti in the documentation, and (b) enter into a Business Associate Agreement (“BAA”) with Zenoti in the form provided by Zenoti. Franchisee is solely responsible for determining whether Franchisee or its affiliates are subject to HIPAA and whether a BAA is legally required or otherwise necessary for use of the Services hereunder. Unless Franchisee has completed each of the requirements stated herein or otherwise provided by Zenoti, Franchisee does not have permission to use the Service to upload, store or transmit any information protected by HIPAA and Zenoti will have no liability under this Agreement in connection with such data, notwithstanding anything in this Agreement or in HIPAA.

7. Confidentiality

1. Definition of 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 7.2 below, “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 pricing and terms of this Agreement, the Zenoti Materials (as defined in Section 9.1 below) and all components thereof.

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 was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information; (e) is required to be disclosed to Franchisor pursuant to an agreement or understanding between Franchisor and the Disclosing Party.

3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 8.5, not disclose or permit access to Confidential Information other than to its employees, affiliates, agents, or professional advisors (“Representatives”) who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7.

4. Trade Secret. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 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.

5. 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 7.3; 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 7.5, 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.

8. Termination

1. Termination for Cause. A party may terminate this Agreement for cause (a) upon written notice to the other party of a material breach by the other party if such breach remains uncured after thirty (30) days from the date of receipt of such notice; or (b) 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.

2. Zenoti Supplemental Termination Rights. Zenoti may terminate this Agreement by giving Franchisee 30 days' advance written notice in the event (a) the Network Agreement is terminated or expires; (b) Franchisee’s Franchise Agreement is terminated or expires; or (c) Franchise is removed from the Network. Notwithstanding the foregoing, the parties hereby acknowledge and agree that this Agreement may be suspended or terminated by Zenoti, pursuant to the terms of the Network Agreement.

3. Termination by Replacement Agreement. This Agreement shall terminate automatically upon the execution of a Replacement Agreement in accordance with Section 7 below.

4. Effect of Termination. Upon termination or expiration of this Agreement: (a) Franchisees right to access and use the Services will immediately terminate; (b) for a period of thirty (30) days following the date of termination, Franchisee may request (in writing) a copy of Franchisee Data; and (c) all fees due and owing as of the termination date will be due and payable. For avoidance of doubt, termination fees are not applicable and fees due from the termination date through the remaining term of the agreement are not applicable.

5. Survival. All terms which by their nature should survive expiration or termination of this Agreement shall so survive such expiration or termination.

9. Intellectual Property Rights  

1. Zenoti Materials. Franchisee acknowledges and agrees that all right, title, and interest in and to the Services any and all intellectual property provided to Franchisee or any Authorized User in connection with the foregoing (“Zenoti Materials”), 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. For the avoidance of doubt, the Zenoti Materials includes Aggregate Data (as defined in Section 9.2 below) and any information, data, or other content derived from Zenoti’s monitoring of Franchisee’s access to or use of the Services, but does not include Franchisee Data. Franchisee further acknowledges and agrees that the Services (and all components thereof and information contained therein) are trade secrets of Zenoti and/or its Affiliates. The Services (including any software contained therein) are licensed, not sold, by Zenoti to Franchisee, 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.  

2. Franchisee Data. As between Franchisee and Zenoti, Franchisee is and will remain the sole and exclusive owner of all right, title, and interest in and to all Franchisee Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted to Franchisor or Zenoti in the Network Agreement and Franchisee’s franchising agreements with its Franchisor.  Franchisee hereby grants Zenoti a limited, non-transferable, sublicensable royalty-free license to use modify, adapt, enhance, reproduce, create derivative works and/or other improvements, import, export, perform, display, execute, transmit and distribute Franchisee Data for the limited purpose of: (a) performing Zenoti’s obligations hereunder, including, without limitation, the right to process Franchisee Data in connection with providing the Services; and (b) creating Aggregated Data. For the purpose of this Agreement, “Aggregate Data” means data resulting from the aggregation, calculation, analysis or compilation of Franchisee Data and/or data from other sources within the Services, including other clients or customers of Zenoti; provided that (i) such resulting data does not identify Franchisee as the source of any such data, and (ii) the identities of Franchisee or any of its respective Authorized Users, customers, employees, or clients or any individual are not discernable from the resulting data.  

3. 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"). Franchisee agrees not to display or use in any manner, the Marks without the prior written permission of Zenoti or its applicable Affiliates.

4. Feedback. Zenoti shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback regarding the Services that Zenoti receives from Franchisee, Authorized Users, or other third parties acting on Franchisee’s behalf. Zenoti also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback regarding the Services that Zenoti receives from Franchisee, Authorized Users, or other third parties acting on Franchisee’s behalf.

5. 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.

10. Warranties; Disclaimer

1. Mutual Warranties. Each party hereby warrants to the other party that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its origin; and (c) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement.

2. Additional Franchisee Representations, Warranties, and Covenants. Franchisee represents, warrants, and covenants to Zenoti that (a) its Authorized Users are 18 years of age or older; (b). Franchisee has and will maintain during the Term the necessary rights, authorizations, and consents in and relating to the Franchisee 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 laws.

3. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 10, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND ZENOTI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FRANCHISEE ACKNOWLEDGES THAT ZENOTI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE. TO THE FULLEST EXTENT PERMITTED BY LAW, ZENOTI’S SOLE LIABILITY SHALL BE TO FRANCHISOR PURSUANT TO THE NETWORK AGREEMENT AND ZENOTI HAS NO LIABILITY TO YOU WHATSOEVER.  

11. Indemnification. Franchisee shall indemnify, hold harmless, and, at Zenoti’s option, defend Zenoti from and against any and all losses, damages, liabilities, costs (including attorneys' fees) resulting from any third-party claim, suit, action, or proceeding (a) alleging that Franchisee Data, or any use of the Franchisee Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; (b) based on Franchisee’s or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) material breach of this Agreement.  

11. Claims Against Zenoti

You agree that Zenoti shall have no direct liability or obligations to you for any claims arising out of this Agreement. Rather, your Franchisor may bring such a claim on your behalf, subject to the terms and conditions of the Network Agreement and Section 13 below. In the event of a third-party action against you related to Zenoti’s material breach of this Agreement, your Franchisor may require Zenoti to assume control of the defense of such an action pursuant to the terms of its Network Agreement with Zenoti.  

12. Limitation of Liability.

1. EXCLUSION OF DAMAGES. EXCEPT WITH RESPECT TO A BREACH OF ITS OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF ZENOTI), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

2. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ZENOTI’S AGGREGATE LIABILITY TO FRANCHISEE OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY THE FRANCHISEE DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.

14. Replacement Agreement

1. Triggering Event.  A “Triggering Event” means any one or more of the following: (a) Franchisor is sold in whole or in part, is merged, or transfers substantially all of its assets, to or with an unaffiliated third party or parties; (b) the Network Agreement is terminated or expires; (c) Franchisee ceases participation in the Network; or (d) Franchisee’s franchise agreement with Franchisor is terminated or expires.  

2. Effect of Triggering Event. Replacement Agreement Franchisee agrees, that as consideration for Zenoti to enter into this Agreement, that upon the occurrence of a Triggering Event during the Term, Franchisee shall execute Zenoti’s standard terms of use in substantially similar form as set forth at zenoti.com/legal (“Replacement Agreement”); provided however, in the event a Triggering Event is due to: (a) termination or expiration of the Network Agreement; or (b) Franchisee ceases participation in the Network, Zenoti may, at its sole discretion, relieve Franchisee of its obligation under this subsection.  Following execution of the Replacement Agreement, continued use of and access to the Services by Franchisee shall be subject to the Replacement Agreement between Zenoti and Franchisee for the term set forth therein.

15. General  

1. Governing Law; Venue; 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.

2. Future Functionality. Franchisee acknowledges and agrees that this Agreement is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Zenoti regarding future functionality or features of the Services.  

3. Notice. Written notices (other than normal operations) required under this Agreement will be sent by email, certified mail, or courier (all with tracking and delivery confirmation). Notices will be effective upon receipt. Notices to Franchisee will be sent to the contact information provided pursuant to the Order Form. Notices to Zenoti shall be provided by email to financial@zenoti.com or by mail to 15395 SE 30th Place, Suite 100, Bellevue, WA 98007.

16. Miscellaneous

This Agreement is binding and constitutes the entire Agreement between the parties and supersedes all previous negotiations, agreements and commitments; it shall only be amended in writing signed by both parties.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original. If any provision of this Agreement is judged to be invalid, illegal or unenforceable, that provision shall be deemed deleted and the remainder shall not be affected. Franchisee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, without Zenoti’s prior written consent. Zenoti’s failure to enforce any provision of this Agreement shall not be deemed a waiver of the provision or any right under the Agreement. The parties are and shall be independent contractors and nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or franchise relationship between the parties.  Neither party shall be in default in the performance of this Agreement because of reasons outside of the reasonable control of either party (“Force Majeure Event”). Notwithstanding the foregoing, Franchisee will not be entitled to claim a Force Majeure Event to excused performance of monetary obligations as and when such obligations fall due under the terms of this Agreement.