Terms of Service
Updated August 14, 2016
Zapproved provides its Z-Discovery™ cloud-based suite of services (the “Services”) via the websites (each, a “Website”) through which a customer may access and use the Services. Any use of the Services is subject to the terms and conditions herein (the “Terms of Service”), which together with the Orders (defined below) form an agreement between Zapproved and the customer listed on the Order (the “Customer”).
If you are a Customer and do not agree with any of the Terms of Service, you shall not use the Services.
1. Ordering. Customer and Zapproved may from time-to-time enter into orders for the Services on a form provided by Zapproved (each, an “Order”), and any such Order shall be governed by these Terms of Service, and once accepted by Zapproved will form the agreement (“Agreement”) between Zapproved and the Customer regarding the Services. The Order may incorporate these Terms of Service by reference, or by attaching the Terms of Service directly to the Order.
2. Services. In exchange for payment of the fees listed on the Order (“Fees”) and subject to the Terms of Service herein, and any listed in the Order, Zapproved grants to Customer a non-exclusive, non-transferable, worldwide right to have Users access and use the Services listed on the Order for the duration of the Agreement. Other than this subscription to access and use the Services, Zapproved reserves all right, title and interest in the Services and the Website. “Users” means any person who is authorized by the Customer to use the Services on Customer’s behalf, including any employee, contractor, consultant, or agent of Customer or any Affiliate of Customer; provided, that in every case Customer is responsible and liable for the acts and omissions of any User. “Affiliate” means any corporation, firm, partnership or other entity that directly or indirectly controls, or is controlled by, or is under common control with Customer.
3. Restrictions. Customer shall use the Services solely for Customer’s business purposes and shall not: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Services; (b) distribute, transfer, lease, grant sublicenses, or otherwise make available the Services to third parties (including as an application service provider, service bureau, or rental source); (c) embed or incorporate in any manner the Services into websites other than the Website; (d) except as enabled by an application programming interface released by Zapproved, create add-ons, plug-ins, extensions, modifications to or derivative works of the Services; (e) remove the copyright, trademark, or any other proprietary rights or notices included within the Services and on and in the documentation and training materials; (f) use the Services in a manner not authorized under the documentation on the Website or in violation of any applicable law, rule or regulation, including any applicable export/import laws, such as the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State; or (f) in any way access or use the Services to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Services.
4. Registration. Customer will ensure that all Users (a) provide accurate, current and complete information as may be prompted by any registration forms on the Site (“Registration Data”), (b) maintain the security of any passwords and identification, and (c) maintain and promptly update the Registration Data and any other information provided to Zapproved.
5. Duration. The Agreement will begin on the date stated in an Order (or if no such date is stated, on the date Customer first accesses the Services), and will last for as long as there are Orders in force, unless terminated earlier in accordance with this Section.
5.1. Suspension of Access. Zapproved may suspend Customer’s access to and use of the Services if any undisputed Fees that are due become delinquent (fall into arrears for more than thirty (30) days), or immediately if Customer is in material breach of Section 10.2. In the event Customer is in arrears and may have access to the Services suspended, Zapproved will provide Customer with ten (10) days of notice (which may be via email) prior to suspending the account. The suspension will last until all Fees have been paid or the breach has been cured, and will not extend the Customer’s subscription term.
5.2. Termination for Breach. Either party may terminate this Agreement if the other party has materially breached any of the terms and conditions and failed to cure the breach following at least thirty (30) days written notice. If Customer has terminated under this Section, within thirty (30) days after termination Zapproved will refund to Customer the pro-rated amount of the Fees that corresponds to the terminated portion of the current subscription. If Zapproved has terminated under this Section, all Fees that were not yet due become immediately due and payable as of the termination date.
5.3. Termination for Bankruptcy. Either party may terminate this Agreement immediately upon written notice if (a) the other party is declared insolvent or adjudged bankrupt by a court of competent jurisdiction, or (b) a petition for bankruptcy or reorganization or an arrangement with creditors is filed by or against that party and is not dismissed within sixty (60) days. If this Agreement terminates under this Section, Customer shall pay Zapproved all Fees that are due and payable up to the date of Termination, and amounts that have been paid to Zapproved are hereby deemed earned upon receipt and are Zapproved’s sole property, irrespective of whether goods or services, have been delivered and may be applied, in whole or in part, in satisfaction of any obligations owed by Customer to Zapproved under this Agreement or any other agreement between Customer and Zapproved. Customer is not entitled to any refund of Fees that cover any unused portion of a subscription.
5.4. Effect of Termination. Upon termination for any reason, (a) Customer will immediately cease all access to the affected Services, and if applicable will uninstall any Zapproved software that was installed on its equipment in connection with the Services, and (b) upon Customer’s written request (which Zapproved must receive within thirty (30) days after termination) and payment of all undisputed Fees, Zapproved shall provide Customer with an electronic copy of the Customer Data (defined below) in the format determined by Zapproved (alternative formats may be available at an additional cost). Zapproved is not responsible for maintaining any Customer Data more than thirty (30) days following termination. The following terms survive termination for any reason: 3, 5.4, 8.4, and 9 through 15.
6. Fees. All Fees and payment terms will be stated in the Order.
7. Support. Zapproved will provide the support services stated at www.zapproved.com/login/support-policy/ to Customer during the Subscription Term. Zapproved may modify the support services in its discretion, and any changes will apply after posting on the support website; provided, that with respect to any changes that adversely and materially diminish support, Zapproved will notify Customer via email of such changes, and the changes will not take effect until forty-five (45) days following the date of notice.
8. Intellectual Property Rights and Customer Data.
8.1. Intellectual Property Rights Definition. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
8.2. Intellectual Property Rights Ownership, Use. Zapproved alone (and its suppliers, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to all of Zapproved’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) (hereafter, “Zapproved Technology”) made available to Customer by Zapproved in providing the Services the Zapproved Technology and the Services, and Customer hereby assigns to Zapproved any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services or the Zapproved Technology. Zapproved may use such submissions as it deems appropriate in its sole discretion. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Zapproved Technology or the Intellectual Property Rights owned by Zapproved and its suppliers. The Zapproved name, the Zapproved logo, and the product names associated with the Services are trademarks of Zapproved or its suppliers, and no right or license is granted to use them. Customer will not accrue any residual rights to the Zapproved technology or Services, including any rights to the Intellectual Property Rights in connection therewith.
8.3. Customer Data Definition. “Customer Data” means any data and information that Customer generates using the Services during the term of this Agreement. Customer Data may include “Personal Information,” meaning information relating to a person that identifies such person or could reasonably be used to identify such person, either from the information itself or by combining the information with information from other sources obtained pursuant to the Services. Personal Information includes, but is not limited to, a person’s name, image, likeness, voice, address, phone number, fax number, e-mail address, IP address, account number, social security number or other government-issued identifier, credit information, employee information, employer-issued identifier, medical or health information and financial information.
8.4. Customer Data Ownership; Use. Customer retains ownership of all right, title, and interest in the Customer Data. Customer grants Zapproved (with a right to sublicense to a subcontractor that is hosting the Zapproved Service (each a “Hosting Provider”)) a nonexclusive, worldwide, royalty-free, license to reproduce, display, adapt, modify, transmit, distribute, and otherwise use such Customer Data as necessary or reasonable to provide the Services and to use the Customer Data in anonymized and aggregated form for generating “Benchmarking Statistics” relating to industry trends provided that the anonymized data does not include information that identifies or provides a reasonable basis to identify a company or an individual, where, without limitation, the following identifiers have been removed: company names and the names of individuals, addresses, account numbers, social security numbers, phone numbers, e-mail address(es) and any other information which could reasonably be anticipated to identify, when taken in the aggregate, a specific company, organization or individual.
9. Security. Zapproved will use best-practice security methodologies to protect Customer Data, and will require use of such methodologies from its Hosting Provider (see www.zapproved.com/support-services/security-policy/ for further details). The specific methods used may vary from time to time, and Zapproved does not represent or warrant that such security measures will be infallible. While Zapproved does maintain backups for all Customer Data that is stored in its systems, the Services are not intended for use as an archive, and should not be used to store original copies of Customer Data.
9.1. Data Breach. In the event of any unauthorized and/or unlawful access, use, disclosure, destruction, or loss of Customer Data stored in Zapproved software used by Customer in accordance with the terms of this Agreement (a “Data Breach”), Zapproved will promptly notify Customer and will cooperate with Customer’s reasonable efforts to resolve the Data Breach.
9.2. Remediation by Zapproved. If the Data Breach was the direct result of the willful misconduct of Zapproved and not a result of the willful misconduct of the Customer, then Zapproved will maintain control of and pay for efforts to remediate the Data Breach, including (i) conducting necessary and appropriate investigation to determine if Customer Data was the subject of a Data Breach; (ii) delivering legal notices to affected individuals or other third parties as may be required by laws or as otherwise appropriate under the circumstances; (iii) cooperating with and responding to regulatory inquiries and other similar governmental actions, if applicable; and (iv) purchasing credit and identity protection services required by applicable law with respect to any Personal Information (collectively “Remediation Efforts”).
9.3. Remediation by Customer. If the Data Breach was the direct result of the willful misconduct of the Customer and not a result of the willful misconduct of Zapproved, then Customer will maintain control of and pay for Remediation Efforts.
10.1. Definitions. “Confidential Information” means: (i) any Customer Data that is marked as “confidential” when disclosed by Customer to Zapproved or that Zapproved knew or reasonably should have known under the circumstances was considered confidential by the Customer; and (ii) any confidential or proprietary information of Zapproved that is marked “confidential” when disclosed by Zapproved to Customer (including the terms and conditions of this Agreement) or that Customer knew or reasonably should have known under the circumstances was considered confidential by Zapproved, including, whether or not marked “confidential,” all trade secrets, software, source code, object code, specifications, documentation, pricing, business plans, customer-related information, and financial information. Confidential Information of a Disclosing Party does not include any information that (i) was known to the Receiving Party prior to disclosure by the Disclosing Party, (ii) is publically disclosed without restriction through no fault of the Receiving Party, (iii) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or is in the possession of a Receiving Party more than three (3) years after termination of this Agreement.
10.2. Non-Disclosure. Each Party (the “Receiving Party”) will protect the other Party’s (the “Disclosing Party”) Confidential Information from unauthorized dissemination and use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Neither Party will use Confidential Information of the Disclosing Party for purposes other than those necessary to directly further the purposes of this Agreement. Neither Party will disclose the Disclosing Party’s Confidential Information to unaffiliated third parties without prior written consent of the other Party.
10.3. Compelled Disclosure. 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 or seek an appropriate protective order.
11. Representations and Warranties; Disclaimer.
11.1. Zapproved Warranty. Zapproved represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws and regulations, and (c) in the original form provided by Zapproved, the Website, Services, and any software that Zapproved provided for local installation does not contain any Harmful Code (defined below). “Harmful Code” means any software code that contains any virus, “back door”, “time bomb”, “Trojan Horse”, “worm”, “drop dead device” or other software routine designed to (i) permit unauthorized access to, or use of, computing equipment or networks, (ii) replicate, transmit, or activate itself without control of a person operating the computing equipment on which it resides, or (iii) alter, disable, damage, or erase any other software without authorization.
11.2. Customer Warranties. Customer represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws and regulations, (c) Customer owns all rights to the Customer Data, or Customer otherwise has the right to transfer such Customer Data to Zapproved and its Hosting Provider, and to grant the license stated in Section 8.4, (d) the Customer Data does not contain any Harmful Code, (e) the Customer Data does not violate this Agreement and does not and will not infringe upon or violate any rights of any third party or cause injury to any person or entity, and (f) with respect to any Customer Data that contains personal information of a resident of a European Union member country, that Customer has provided such personal information to Zapproved in accordance with the applicable data protection laws of that EU member country.
11.3. DISCLAIMER. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, NEITHER PARTY PROVIDES ANY OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ZAPPROVED DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICES WILL ASSURE COMPLIANCE WITH LEGAL DISCOVERY REQUIREMENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
12.1. Obligation. Subject to the conditions and exceptions listed below, each party (as an “Indemnifying Party”) will defend the other and the other’s shareholders, directors, and employees (the “Defendants”) against a third party’s claim that arises out of or relates to the Indemnifying Party’s material breach of its: (i) confidentiality obligations in Section 10, and (ii) warranties and representations in Section 11 (in each case, a “Claim”), and will further indemnify and hold harmless the Defendants against any damages, penalties, costs and expenses (including reasonable attorney fees) which are awarded in a final award, judgment or settlement of such Claim.
12.2. Intellectual Property. Zapproved will defend or settle, at its option and expense, any action, suit or proceeding brought against Customer by a third party alleging that the Zapproved software infringes such party’s patent, copyright, or trademark (“IP Claim”). Zapproved will further indemnify and hold harmless the Defendants against all Costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such IP Claim. SECTIONs 12.2, 12.3, and 12.4 STATE ZAPPROVED’S ENTIRE OBLIGATION TO CUSTOMER AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
12.3. Exceptions. Zapproved has no obligation as an Indemnifying Party with respect to any Claim or IP Claim based upon or otherwise relating to (a) any use of the Services that is not expressly authorized by this Agreement, (b) the combination of the Services with other products, services, equipment, software, or data not supplied by Zapproved (provided that the Claim would not have accrued but for the combination), or (c) any modification of the Services by any person other than Zapproved or its authorized agents.
12.4. Conditions. An Indemnifying Party’s obligations under Section 12 are conditioned on Defendants: (a) notifying the Indemnifying Party immediately upon receiving a Claim or IP Claim and providing a written copy of same setting forth in reasonable detail the facts and circumstances surrounding the claim, (b) fully cooperating with the Indemnifying Party in the defense or settlement of the Claim or IP Claim, and (c) providing the Indemnifying Party with all necessary authority to defend or settle the Claim or IP Claim. A Defendant may participate in the defense or settlement of the Claim at its own expense.
12.5. Injunctions. Following notice of a Claim or IP Claim, or if in its sole discretion Zapproved determines that a Claim or IP Claim is likely, Zapproved may, at its sole option, procure for Customer the right to continue to use the Services as furnished, or replace or modify the Services to make them non-infringing, or terminate this Agreement and refund to Customer any Fees paid for unused portions of the subscription term.
12.6. Exclusive Remedy. This Section 12 states each party’s sole liability and sole remedy for indemnification that arises from or relates to this Agreement.
13. Limitation of Liability. EXCEPT AS STATED BELOW, EACH PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT IS LIMITED AS FOLLOWS:
(A) NEITHER PARTY SHALL BE LIABLE FOR ANY OF THE OTHER PARTY’S INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR REVENUE, LOST OR INACCURATE DATA OR LOST SAVINGS).
(B) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO ZAPPROVED IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY; PROVIDED THAT THIS LIMIT WILL NOT APPLY TO ANY CLAIM FOR UNPAID FEES OR TO ANY BREACHES OF SECTION 3 (RESTRICTIONS; AND PROVIDED FURTHER THAT THIS LIMIT WILL BE MULTIPLIED BY A FACTOR OF THREE (3) WITH RESPECT TO CLAIMS BY A NON-BREACHING PARTY THAT THE OTHER PARTY BREACHED SECTION 9 (SECURITY), SECTION 10 (CONFIDENTIALITY), OR SECTION 12.2 (INTELLECTUAL PROPERTY).
OTHER THAN AS STATED ABOVE, THESE LIMITS APPLY REGARDLESS OF THE FORM OF CLAIM (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THIS SECTION IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH EVENT, LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
14. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, applicable to agreements made and to be entirely performed within the State of Oregon, without resort to its conflict of law provisions. Customer agrees that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state and federal courts located in Multnomah County, Oregon and Customer hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action or proceeding.
15. Publicity. Zapproved will not publicize the use of the Services by Customer without Customer’s prior, written approval, which shall not be unreasonably withheld or delayed.
16.1. Notices. All notices to be given under this Agreement must be in writing addressed to the receiving party’s designated recipient specified in the Order. Notices are validly given upon: the earlier of confirmed receipt by the receiving party, or three (3) days after dispatch by courier or certified mail, postage prepaid, properly addressed to the receiving party. Notices may also be delivered as fully scanned images sent via email and will be validly given upon oral, electronic or written confirmation of receipt. Either party may change its address for purposes of notice by giving notice to the other party in accordance with these provisions.
16.2. Waivers. Either party’s failure to enforce any provision of this Agreement will not be deemed a waiver of the future enforcement of that provision or enforcement of any other provision. In order to be binding, a waiver must be in writing and signed by the party giving the waiver.
16.3. Independent Contractors. The parties are independent contractors. Neither party is the agent or partner of the other party, or has any power or authority to act on behalf of the other party.
16.4. Severability. If any provision in this Agreement is found to be invalid or unenforceable as written, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision is to be construed (and, if necessary, modified) so that it is valid and enforceable to the greatest extent possible.
16.5. Attorneys’ Fees. The prevailing party in any action to enforce this Agreement will be entitled to recover costs and expenses including but not limited to reasonable attorneys’ fees, court costs, and all necessary expenses.
16.6. Remedies. Except where this Agreement expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative.
16.7. Force Majeure. Each party will be excused from performance of its obligations under this Agreement to the extent that performance is rendered impossible by an event or circumstance beyond that party’s reasonable control, such as earthquake, fire, flood, governmental action, or labor disruptions, provided that such Party gives prompt written notice thereof to the other Party. Any failure occasioned by the foregoing shall be remedied as soon as reasonably possible.
16.8. Headings, Construction, and Advice of Counsel. Section headings in this Agreement are for convenience only, and will not in any way affect the meaning or interpretation of each section. The word “including” is not intended to be limiting. No rule of strict construction is to be used when interpreting this Agreement. The Parties acknowledge that they have been advised by counsel of their own choosing, played equal parts in negotiating this Agreement and that its terms will be interpreted without any bias against one Party as drafter.
16.9. Assignment. This Agreement (and any amendments or modifications thereto) and any rights or licenses granted to Customer hereunder, are non-transferable, non-exclusive, non-assignable, limited and personal to Customer. Neither party may assign its interest in this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may transfer and/or assign some or all of this Agreement by operation of law due to a merger or change of control, provided however that Customer may not assign this Agreement to any of Zapproved’s competitors. For the purposes of this Agreement, “change of control” means consolidation, or any sale of all or substantially all of its assets or any other transaction in which more than 50% of its voting securities are transferred. This Agreement will inure to the benefit of and be binding upon the party’s successors and permitted assigns. Unless otherwise specifically agreed to by the non assigning party, no assignment by either party shall relieve the assignor from its obligations pursuant to this Agreement. Any assignment in violation hereof shall be null and void.
16.10. Entire Agreement. This Agreement (including the Order) and any other referenced documents reflect the entire agreement between the parties concerning the Services, and supersede any prior or contemporaneous agreements, communications, or understandings (whether written or oral). Both parties must agree in writing to any amendments or modifications. All terms, conditions, or provisions which may appear as pre printed language or otherwise be inserted within any purchase order shall be of no force and effect notwithstanding the acceptance of such purchase order after the date of this Agreement. If any provision of this Agreement is declared invalid or unenforceable, then the court shall replace the invalid or unenforceable provision with a valid and enforceable provision that most accurately reflects the Parties’ intentions and the remaining provisions of this Agreement shall remain in full force and effect.