These Terms of Service (the "Agreement") is made and entered into by and between Electronic Commerce Software Sweden AB, Registration number 556831-3042, Warfvinges väg 35, 112 51 Stockholm, Sweden ( "ZIZERA" - a registered trademark of Electronic Commerce Software , Sweden AB) and the entity or person agreeing to these terms ("Customer").
This Agreement is effective as of the date Customer accepts this Agreement (the "Effective Date"), by clicking a box indicating its acceptance; by executing an Order that references this Agreement; or by using the ZIZERA Software as Service; by subscribing the ZIZERA SaaS or accessing ZIZERA Services.
If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understood this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. This Agreement governs Customer's access to and use of the Services.
Scope of the Agreement
Provision of the Services
Subject to the terms and conditions of this Agreement ZIZERA grants Customer a non-exclusive right to access and use the Services during the applicable Subscription Term in accordance with this Agreement, Customer’s applicable scope of use and the Documentation. Customer acknowledges that ZIZERA Services are on-line, subscription-based services and that ZIZERA may make changes to the Services and TSS from time to time as specified in Section 20.2.
ZIZERA will provide the Services to Customer or may, at its own discretion, subcontract a third party to provide the Services and Technical Support Services on ZIZERA’s behalf in accordance with this Agreement. As part of receiving the Services, Customer will have access to the Admin Console, through which Customer may administer the Services. Upon the acceptance of this Agreement ZIZERA will deliver the applicable login instructions to the Notification Email Address or in accordance to the applicable Order.
Customer may need to register for a ZIZERA account and a Token (if applicable) in order to place Order or access or receive any Services and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. Customer must also update its information so that ZIZERA may send notices, statements and other information to Customer by email or through Customer’s account.
Customer must ensure all Authorized Users keep their login information, Tokens and any other information necessary for accessing the Services confidential and not share any such information with any unauthorized person. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify ZIZERA as promptly as possible. ZIZERA has no obligation to provide Customer multiple Tokens or Accounts.
There may be storage limits associated with the Services. These limits are described in the Documentation for the particular Service. ZIZERA reserves the right to charge for additional storage, bandwidth or other overage fees in accordance with ZIZERA then-current pricing list. ZIZERA may impose new, or modify existing, limits for the Services at any time at ZIZERA’s own discretion, with or without notice to the Customer.
To ensure optimal performance of the Services, ZIZERA performs periodic Maintenance. In most cases, Maintenance will have limited or no negative impact on the availability and functionality of the Services. If ZIZERA expects planned Maintenance to negatively affect the availability or functionality of the Services, ZIZERA will use commercially reasonable efforts to provide at least 7 days’ advance notice of the Maintenance. In addition, ZIZERA may perform emergency unscheduled Maintenance at any time. If ZIZERA expects emergency unscheduled Maintenance to negatively affect the availability or functionality of the Services, ZIZERA will use commercially reasonable efforts to provide advance notice of such Maintenance. ZIZERA may provide any notice to Customer under this Section: (i) by sending an email to the Notification Email Address, or (ii) through the Admin Console.
ZIZERA may offer certain services to Customer at no charge, including free accounts, trial use and Beta Versions (collectively “Free Services”). Free Services may provide Customer access to subscription benefits at no charge for a specified trial period, after which Customer will be charged until it cancels the subscription as further specified in Section 10. Unless otherwise provided for in writing by ZIZERA, access to the free services is limited to a single Authorized User for a limited period of time, after which Customer loses access to the Account and Customer Data. Customer’s use of Free Services is subject to any additional terms that ZIZERA specifies and is only permitted for the Subscription Term designated by ZIZERA (or, if not designated, until terminated in accordance with this Agreement). Except as otherwise set forth in this Section 4, these Terms of Service fully apply to Free Services. ZIZERA may modify or terminate Customer’s right to use Free Services at any time and for any reason in its sole discretion, without liability to Customer or any third party. Customer understands that any pre-release and beta Services, and any pre-release and beta features within generally available Services, that ZIZERA makes available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Services. ZIZERA makes no promises that any Beta Versions will ever be made generally available. In some circumstances, ZIZERA may charge a Fee in order to allow Customer to access Beta Versions, but the Beta Versions will still remain subject to this Section 4. All information regarding the characteristics, features or performance of Free Services (including Beta Versions) constitutes ZIZERA’s Confidential Information.
No obligations. To the maximum extent permitted by applicable law, ZIZERA disclaims all obligations or liabilities with respect to Free Services, including any Support, maintenance or other services relating to the Services, warranty, and indemnity obligations. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if ZIZERA terminates Customer’s account, except as required by law ZIZERA will provide Customer a reasonable opportunity to retrieve Customer Data.
An authorized user is the individual that signs up for the Services, or the specific individuals for whom Customer has paid the required Fees and whom Customer designates through the Services (“Authorized Users”) may access and use ZIZERA’s Services.
Customer may add Authorized Users, increase storage limits, or otherwise increase its use of the Services by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, ZIZERA will charge Customer for any increased use at ZIZERA’s then-current rates, prorated for the remainder of the then-current Subscription Term.
Number of Users.
Access to the Free Services is limited to a single Authorized User. Paid Services may include one or more Authorized User Account as specified in the applicable Order.
Customer may increase the number of Authorized Users permitted to access its instance of the Service by placing a new Order or, in some cases, directly through the Service. In all cases, Customer must pay the applicable fee for the increased number of Authorized Users. Customer is responsible for compliance with this Agreement by all Authorized Users. All use of Services by Customer and its Authorized Users must be within the scope of use and solely for the benefit of Customer. Customer is responsible for ensuring all Authorized Users comply with Customer’s obligations under this Agreement.
Except as otherwise expressly permitted in this Agreement, Customer will not: (a) rent, lease reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Services to a third party, (b) use the Services for the benefit of any third party, (c) incorporate any Services into a product or service Customer provides to a third party, (d) interfere with any license key mechanism in the Services or otherwise circumvent mechanism in the Services intended to limit Customer’s use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Services, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Services, or (g) publicly disseminate information regarding the performance of the Services.
“ Customer Data ” means any data, content, code, video, images or other materials of any type that Customer uploads, submits or otherwise transmits to or through ZIZERA’s Services. Customer will retain all right, title and interest in and to Customer Data in the form provided to ZIZERA. Subject to the terms of this Agreement, Customer hereby grants to ZIZERA a non-exclusive, worldwide, royalty-free right to
(i) collect, use, copy, store, transmit, modify and create derivative works of Customer Data, in each case solely to the extent necessary to provide the applicable Service to Customer and
(ii) to distribute and publicly perform and display Customer Data as Customer (or Customer’s Authorized Users) direct or enable through the Service. ZIZERA may also access Customer account, Customer admin console or instance in order to respond to Customer support requests, as applicable.
Responsibility for Customer Data.
Customer must ensure that its use of Services and all Customer Data is at all times compliant with ZIZERA’s Acceptable Use Policy available at www.zizera.com/policies and all applicable local, state, federal and international laws and regulations (“ Laws ”). Customer represents and warrants that:
(i) Customer has obtained all necessary rights, releases and permissions to provide all Customer Data to ZIZERA and to grant the rights granted to ZIZERA in this Agreement and
(ii) Customer Data and its transfer to and use by ZIZERA as authorized by Customer under this Agreement do not violate any Laws or rights of any third party, including without limitation any Intellectual Property Rights, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. ZIZERA assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.
General Data Protection Regulation (GDPR)
This Agreement incorporates the ZIZERA Data Processing Addendum (“ Addendum ”), available at www.zizera.com/policies, when the GDPR applies to Customer use of the Service to process Personal Data (as defined in the Addendum).
The Addendum is effective as of 25 May 2018 and replaces and supersedes any previously agreed data processing addendums between Customer and ZIZERA relating to the Directive 95/46/EC.
Removals and Suspension
ZIZERA has no obligation to monitor any content uploaded to the Services. Nonetheless, if ZIZERA deems such action necessary based on Customer violation of this Agreement or in response to takedown requests that ZIZERA receives ZIZERA may
(i) remove Customer Data from the Services, or
(ii) suspend Customer access to the Services. ZIZERA will generally alert Customer when it takes such action and give Customer a reasonable opportunity to cure such breach. But if ZIZERA determines that Customer actions endanger the operation of the Services or other users, ZIZERA may suspend Customer access immediately without notice. Customer will continue to be charged for the Services during any suspension period. ZIZERA has no liability to Customer for removing or deleting Customer Data from or suspending Customer access to any Services as described in this section 9.
Free Services may be provided free of charge for a limited period of time, after which Customer will be charged until it cancels or disables auto-renewal as specified in Section 10.3. To avoid being charged, Customer must notify ZIZERA, prior to the end of the Free Services’ Subscription Term, that it wants to cancel or disable auto-renewal.
Customer agrees to pay all Fees in accordance with each Order. All amounts are non-refundable, non-cancelable and non-creditable. In making payments, Customer acknowledges that it is not relying on future availability of any Services or TSS beyond the current Subscription Term or any upgrades or feature enhancements.
Except as otherwise specified in the applicable Order, and provided that Customer has already provided a method of payment to ZIZERA, all subscriptions will automatically renew for periods equal to Customer’s initial Subscription Term (and Customer will be charged at the then-current rates) unless Customer cancels its subscription through its account at zizera.com or terminates this Agreement in accordance with Section 21. If Customer cancels, its subscription will terminate at the end of then-current Subscription Term. Customer will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
Customer is responsible for any Taxes, and Customer will pay ZIZERA for the Services without any reduction for Taxes. If ZIZERA is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides ZIZERA with a timely and valid tax exemption certificate authorized by the appropriate taxing authority.
Technical Support Services
Subject to the terms of this Agreement and payment of applicable Fees, ZIZERA will provide Technical Support Services (“ TSS ”) to Customer pursuant to the applicable Order. TSS may be subject to additional policies and terms as specified by ZIZERA in an Order or SLA. Certain TSS levels include a minimum recurring Fee. If Customer downgrades its TSS level during any calendar month, ZIZERA may continue to provide TSS at the same level and TSS Fees before the downgrade for the remainder of that month.
Technical Service Deliverables.
ZIZERA will retain all right, title and interest in and to ZIZERA Deliverables that are provided to Customer by ZIZERA. Customer may use any of ZIZERA Deliverables provided to Customer only in connection with the Services, subject to the same usage rights and restrictions as for the Services. For clarity, Deliverables are not considered Services, and any Services are not considered to be ZIZERA Deliverables.
Customer agrees to provide ZIZERA with reasonable access to Customer materials, personnel, equipment or facilities (including without limitation Customer’s instances of the Services) as reasonably necessary for ZIZERA’s provision of TSS. If Customer does not provide ZIZERA with timely access to Customer Materials, ZIZERA’s performance shall be excused until Customer does so. Customer retains its rights in Customer Materials, subject to ZIZERA’s ownership of any Services, any of ZIZERA’s Deliverables or any of ZIZERA Technology underlying Customer Materials. ZIZERA will use Customer Materials solely for purposes of performing the TSS. Customer represents and warrants that it has all necessary rights in Customer Materials to provide them to ZIZERA for such purposes.
License to Developer Guides.
From time to time, ZIZERA may publish SDK’s or API’s and associated guidelines (“ Developer Guides ”) to allow Customer to develop plugins, extensions, add-ons or other software products or services that interoperate with the Services (“ Customer Add-Ons ”).
Customer agrees that for any API made available by ZIZERA:
(a) ZIZERA makes no representations or warranties whatsoever regarding any API or any quality of service available via any API;
(b) ZIZERA may restrict usage limits;
(c) Customer will not modify any content accessed via that API;
(d) ZIZERA may terminate or deprecate any service or functionality available via an API at any time without notice or liability; and
(e) use of some APIs may require obtaining an API key from ZIZERA and ZIZERA may disable any key at any time without notice or liability. Customer is solely responsible and liable for development and use of such Customer Add-Ons. Customer may distribute its Customer Add-Ons to third parties, but only for those Services permitted by ZIZERA, and only in accordance with Developer Guides.
Conditions to Development of Add-Ons.
Notwithstanding anything in this Agreement to the contrary, ZIZERA has no support, warranty, indemnification or other obligation or liability with respect to Customer Add-Ons or their combination, interaction or use with the Services. Customer shall indemnify, defend and hold ZIZERA harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against ZIZERA by a third party relating to Customer Add-Ons (including but not limited to any representations or warranties Customer makes about Customer Add-Ons) or Customer’s breach of this Section 12.
Combining the Services with Open Source Software.
A requirement of some open source licenses, sometimes known as “copyleft licenses,” is that any modifications to the open source software, or combinations of the open source software with other software (such as by linking), must be made available in source code form under the terms of the copyleft license. Examples of copyleft licenses include the GPL or LGPL, Affero, CPL, CDDL, Eclipse or Mozilla licenses. To the extent Customer is separately authorized by ZIZERA to combine and distribute Services with any other code, Customer must make sure that Customer’s use does not:
(i) impose, or give the appearance of imposing, any condition or obligation on ZIZERA with respect to its Services (including, without limitation, any obligation to distribute its Services under an open source license); or
(ii) grant, or appear to grant, to any third party any rights to or immunities under ZIZERA’s Intellectual Property Rights or proprietary rights in its Services. To be clear, Customer may not combine or otherwise modify ZIZERA’s Services unless ZIZERA expressly gives Customer the right to do so under this Agreement.
Third Party Vendor Products
ZIZERA or third parties may from time to time make available to Customer third-party products or services, including but not limited to add-ons and plugins as well as implementation, customization, training, and other consulting services. If Customer procures any of these third party products or services, Customer does so under a separate agreement (and exchange of data) solely between Customer and the third party vendor. ZIZERA does not warrant or support non-ZIZERA products or services, whether or not they are designated by ZIZERA as “verified” or otherwise, and disclaims all liability for such products or services. If Customer installs or enables any third party products or services for use with ZIZERA Services or products, Customer acknowledges that ZIZERA may allow the vendors of those products and services to access Customer Data as required for the interoperation and support of such add-ons with the ZIZERA Services or products. ZIZERA shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by third party add-on vendors.
Ownership and Feedback
ZIZERA Services are made available on a limited access basis, and no ownership right is conveyed to Customer, irrespective of the use of terms such as “purchase” or “sale”. ZIZERA and its licensors have and retain all right, title and interest, including all Intellectual Property Rights, in and to the Services (including all Free Services), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for ZIZERA, including without limitation as they may incorporate Feedback (“ ZIZERA Technology ”). The foregoing includes any work or technology delivered or created by ZIZERA in accordance to an Order that may be protected by intellectual property law.
If Customer provides ZIZERA Feedback about the Services, then ZIZERA may use that information without obligation to Customer, and Customer hereby irrevocably assigns to ZIZERA all right, title, and interest in that Feedback.
Product and Service Improvement.
Each party undertakes not to, without the prior written consent of the other party, disclose to a third party such information regarding the other party's business that may be regarded as trade secret or professional secret or any other confidential information that is subject to confidentiality according to law (" Confidential Information "). For purposes of clarity, information stated to be confidential, and Supplier’s price information, code, inventions, know-how, business, technical and financial information, shall always be considered as Confidential Information. A party's undertaking of confidentiality in accordance with this Section 15 shall not apply to Confidential Information which:
a) is already known by the recipient when received;
b) is or has become publicly available or known other than by breach of this confidentiality obligation by the receiving party;
c) the receiving party has received in a permissible way from a third party that is under no obligation of confidentiality in relation to the other party; or
d) the receiving party is obliged to make publicly available due to a court order, a decision by a public authority or as otherwise required by law.
A party is liable for its employees’ and consultants’ respective compliance with the provisions stipulated herein and shall through confidentiality obligations with these or other appropriate measures ensure that the Agreement’s confidentiality is observed.
A party's undertaking of confidentiality under the Agreement shall be valid during the Term of this Agreement and continue for a period of five (5) years after expiration or termination of the Agreement.
Representations and Warranties
Each party represents and warrants that:
(i) it has the legal power and authority to enter into this Agreement, and that, if Customer is an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement; and
(ii) it will comply with all applicable laws, regulations applicable to its provision, or use, of the Services, as applicable. ZIZERA warrants that it will provide the Services in accordance with the applicable SLA (if any).
ALL SERVICES, DATA, MATERIALS AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS”. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZIZERA AND ITS SUPPLIERS DO NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT. ZIZERA AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES OR FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER ZIZERA NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
Limitation of Liability
NEITHER PARTY (NOR ZIZERA’S SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 3 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, ZIZERA’S AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. NO ACTION ARISING IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH ACTION FIRST OCCURRED. THE PARTIES AGREE THAT THIS SECTION 18 IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE; THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
Exceptions to Limitations.
These limitations of liability do not apply to violations of a party’s Intellectual Property Rights by the other party, indemnification obligations, Customer’s payment obligations under any Order, Customer’s breach of Section 6 (Restrictions) or Section 12.3 (Combining the Services with Open Source Software) of third party code in ZIZERA Services.
The parties agree that the limitations specified in this Section 18 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Indemnification by Customer.
Customer will defend, indemnify and hold harmless ZIZERA from and against any loss, cost, liability or damage, including attorneys’ fees, for which ZIZERA becomes liable arising from or relating to any claim or Third-Party Legal Proceeding relating to Customer Data, including but not limited to any claim brought by a third party alleging that Customer Data, or Customer’s use of the Services in breach of this Agreement, infringes or misappropriate the Intellectual Property Rights of a third party or violates applicable law. This indemnification obligation is subject to Customer receiving
(i) prompt written notice of such claim;
(ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and
(iii) all reasonable necessary cooperation of ZIZERA at Customer’s expense.
Indemnification by ZIZERA.
ZIZERA will defend Customer against any claim or Third-Party Legal Proceeding brought against Customer by a third party alleging that the Services, when used as authorized under this Agreement, infringe a patent or copyright (a “Claim”), and ZIZERA will indemnify Customer and hold Customer harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by ZIZERA (including reasonable attorneys’ fees), provided that ZIZERA has received from Customer:
(i) prompt written notice of the Claim;
(ii) reasonable assistance in the defense and investigation of the Claim; and
(iii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim.
ZIZERA’s indemnity obligations under Section 19.2 will not apply if the Claim arises as a result of:
(a) the Customer’s breach of this Agreement;
(b) modifications made to the Services by anyone other than ZIZERA;
(c) combination of the Services with materials not provided by ZIZERA, but solely to the extent the alleged infringement is caused by such combination;
(d) use of non-current or unsupported versions of the Services;
(e) Customer Data or circumstances covered by Customer indemnification obligations in Section 19.1;
(f) any third-party deliverables or components contained with the Services or;
(g) if Customer settles or makes any admissions with respect to a Claim without ZIZERA’s prior written consent.
Any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
a) If ZIZERA reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then ZIZERA may, at its sole option and expense:
(i) procure the right for Customer to continue using the Services;
(ii) modify the Services to make them non-infringing without materially reducing their functionality; or
(iii) replace the Services with a non-infringing, functionally equivalent alternative.
b) If ZIZERA does not believe the remedies in Section 19.5(a) are commercially reasonable, then ZIZERA may suspend or terminate Customer’s use of the impacted Services and refund any prepaid amounts for the terminated portion of the Subscription Term.
Sole Rights and Obligations.
Sections 19.2-19.5 state ZIZERA’s sole liability and Customer’s exclusive remedy for any infringement of Intellectual Property Rights in connection with any Services or other items provided by ZIZERA under this Agreement.
Changes to this Agreement.
ZIZERA may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces Customer rights, ZIZERA will use reasonable efforts to notify Customer (by, for example, sending an email, or posting through Customer’s Admin Console or Account, or in the Service itself). Accepting the updated Agreement is required for Customer to continue using the Services. Customer may be required to click through the updated Agreement to show Customer’s acceptance. If Customer does not agree to the updated Agreement after it becomes effective, Customer will no longer have a right to use the Services.
Changes to the Services and TSS.
ZIZERA may make commercially reasonable updates to the Services and TSS under this Agreement from time to time. If ZIZERA makes a material change to the Services or TSS, ZIZERA will inform Customer, provided that it has subscribed with ZIZERA to be informed about such change. If Customer does not accept such updates or changes to the Services or TSS Customer’s only recourse is to cease use of the Services and terminate this Agreement or cancel the TSS.
Term and Termination
This Agreement is effective as of Effective Date and expires upon its termination under this Section 21 or upon cancelation of Customer’s subscription, at the end of Customer’s then-current Subscription Term. (the “ Term ”).
Termination for Convenience.
Either party may terminate this Agreement (including all related Orders) at any time with a written notice to the other party prior to the end of Customer’s then-current Subscription Term.
Termination for Cause.
Either party may terminate the Agreement (including all related Orders) at any time during the Term, with immediate effect, if the other Party commits a material breach of the provisions of this Agreement and does not cure such breach (provided that such breach is capable of cure) within 30 days after being provided with a written notice thereof. ZIZERA may, at any time and with immediate effect, terminate this Agreement due to inactivity.
Termination upon Bankruptcy and Non-payment.
Either party may terminate the Agreement (including all related Orders) at any time during the Term upon written notice to the other party in the event
(a) a petition or action is filed or taken by or against the other party under any insolvency or bankruptcy law that is not dismissed within 60 days,
(b) a receiver is appointed over the other party’s assets,
(c) the other party makes an assignment for the benefit of creditors,
(d) the other party ceases to function as a going concern, or
(e) the partner does not pay the invoices issued by ZIZERA within 30 days from due date.
Notice of Termination.
Termination according to Sections 21.3 - 21.4 shall be effective when the notice is effected according to Section 22.4.
Notwithstanding the foregoing, termination based on Section 19.1 shall take immediate effect.
Effect of Termination.
Once the Agreement terminates, Customer (and Customer’s Authorized Users) will no longer have any right to use or access any Services, or any information or materials that ZIZERA makes available under this Agreement, including ZIZERA Confidential Information. Customer is required to delete any of the foregoing from its’ systems as applicable (including any third party systems operated on Customer’s behalf) and, upon request, provide written certification to ZIZERA that all such Confidential Information has been irretrievably deleted. Customer will not be entitled to any credits or refunds as a result of termination for any prepaid but unused Services subscriptions, or TSS. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Customer Data Portability and Deletion.
Upon Customer request made within 3 months after the effective date of termination of this Agreement, ZIZERA will make Customer Data available to Customer for export or download. After such 3-month period, ZIZERA will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in ZIZERA’S systems or otherwise in its possession or control, unless legally prohibited.
Upon Customer request made within 3 months after the effective date of termination of this Agreement Customer can withdraw its termination and continue its use of the Services.
The following provisions will survive any termination or expiration of this Agreement: Sections 4.2. (No obligations), 6 (Restrictions), 10 (Payment), 12.2 (Conditions to Development of Add-ons), 13 (Third Party Vendor Products), 14 (Ownership and Feedback), 15 (Confidential Information), 16 (Representations and Warranties), 17 (Warranty Disclaimer), 18 (Limitation of Liability), 19 (Indemnification), 21.7 (Effect of Termination), 21.8 (Customer Data Portability and Obligations), 21.9 (Termination Withdrawal), 22 (General Provisions), 23 (Definitions)
In case of any inconsistency among the following documents, the order of precedence shall be:
(i) the applicable Order,
(ii) these Terms of Service and all incorporated policies except for the Order, and
(iii) the Documentation. If ZIZERA provides this Agreement in more than one language and there is a discrepancy between the English text and the translated text, the English text will govern.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of amounts due) on account of strike, shortages, insurrection, war, labor conditions, earthquake, material shortages or any other cause which is beyond the reasonable control of such party. If a force majeure event occurs, the party unable to perform shall promptly notify the other party. It shall use its best efforts to resume performance as quickly as possible and shall suspend performance only for such period of time as is necessary as a result of the force majeure event.
Any notice under this Agreement must be given in writing. ZIZERA may provide notice to Customer via email or through Customer’s account. ZIZERA’s notices to Customer will be deemed given on the day the email was sent. Customer may provide notice to ZIZERA by registered mail to ZIZERA, to the adress EC SOFTWARE SWEDEN AB, Warfvinges väg 35, 112 51 Stockholm, Sweden. Customer notices to ZIZERA will be deemed given upon ZIZERA’s receipt.
Neither Party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other Party; except
a) to an Affiliate where:
(i) the assignee has agreed in writing to be bound by the terms of this Agreement;
(ii) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and
(iii) the assigning party has notified the other party of the assignment.
b) that each Party may assign its rights and obligations under this Agreement without the other’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of and shall be binding on the permitted successors and assignees of the Parties. Any attempted transfer of assignment hereof in violation of this Section 22.5 shall be null and void.
Dispute Resolution; Arbitration.
In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the Stockholm Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Stockholm, Sweden. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
Governing Law; Jurisdiction.
This Agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with Swedish law without giving effect to principles of conflict of laws that would require the application of the laws of a different jurisdiction. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 22.6 (Dispute Resolution; Arbitration) must be brought before the court where ZIZERA has its legal domicile and each party irrevocably submits to the exclusive jurisdiction and venue of that court in any such action or proceeding. Notwithstanding the foregoing, ZIZERA may bring a claim for equitable relief in any court with proper jurisdiction.
Injunctive Relief; Enforcement.
Notwithstanding the provisions of Section 22.6 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
If any provision of this Agreement is held to be unenforceable, such provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions shall continue in full force and effect.
This Agreement may not be modified or amended by Customer without ZIZERA’s written agreement (which may be withheld in ZIZERA’s complete discretion without any requirement to provide any explanation).
The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used herein, “including” (and its variants) means “including without limitation” (and its variants). All definitions in plural in this Agreement shall also mean the singular and definitions in singular shall also mean the plural unless the context otherwise requires.
No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.
Nature of Relationship.
The parties are independent contractors. Neither party shall have, and shall not represent to any third party that it has, any implied right, power or authority to act on behalf of the other party.
This Agreement is the entire agreement between Customer and ZIZERA relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by this Agreement.
" Account " means Customer’s ZIZERA account, including sub-accounts for Authorized Users as applicable.
" Admin Console " means the online console(s) and/or tool(s) provided by ZIZERA to Customer for administering the Services.
“ Affiliate ” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“ Authorized User ” means a registered person approved by an e-mail confirmation as a Customer authorized person to have access to Customer ZIZERA workspace account.
“ Customer Materials ” means Customer’s materials, systems, personnel or other resources.
" Control " means control of greater than fifty percent of the voting rights or equity interests of a party.
“ Deliverables ” means any materials, deliverables, modifications, derivative works or developments that ZIZERA provides in connection with any TSS.
“ Feedback ” means feedback or suggestions about the Services provided to ZIZERA by Customer.
“ Fees ” means the applicable fees for each Service, TSS or other services performed by ZIZERA (as applicable). Fees for Service are set forth as defined in subscription pricing plans at zizera.com/prices or according to customer specific SLA contract
“ Free Services ” means Services that ZIZERA makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Paid Services.
" Intellectual Property Right " means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
“ Maintenance " means maintenance work that is performed on hardware or software delivering the Services.
" Notification Email Address " means the email address(es) designated by Customer in the Admin Console, or in the Order, to receive certain notifications from ZIZERA.
“ Order ” means ZIZERA’s applicable online order page(s), flows, in-product screens or other ZIZERA-approved ordering document or process describing the products and services Customer is ordering from ZIZERA and, as applicable, its permitted scope of use. As applicable, the Order will identify:
(i) the Services,
(ii) the number of Authorized Users, Subscription Term, domain(s) associated with Customer’s use of Services, storage limits, scope of use parameters and
(iii) (for paid Orders) the amount or rate Customer will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include TSS, Free Services and any additional terms or services as applicable.
“ Paid Services ” means Services that Customer purchases under an Order, as distinguished from Free Services or those provided pursuant to a free trial.
“ Services ” means both Free and Paid Services that can be purchased by Customer under an Order or otherwise accessed and used by Customer as applicable.
“ SLA ” means the then-current service level agreement governing ZIZERA TSS available on www.zizera.com/policies
“ Subscription Term ” means Customer’s permitted subscription period for Services or TSS, as set forth in the applicable Order, including all renewals of the term.
“ Taxes” means any duties, customs fees, or taxes (other than ZIZERA’s income tax) associated with the purchase of the Services, including any related penalties or interest.
“ Technical Support Services ” or “ TSS ” means the technical support services or other services related to the Services that ZIZERA provides to Customer, as identified in an Order or SLA. For the avoidance of doubt, customer specific TSS is not a part of regular service included in each subscription plan. Customer’s TSS level is specified in the applicable Order.
" Third-Party Legal Proceeding " means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
" means an alphanumeric key that is uniquely associated with Customer’s Account.