Terms of Service
Updated March 22, 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 these 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 these Terms of Service, you may 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 to the web page that contains them, 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 restrictions listed below in Section 3 and any listed in the Order, Zapproved grants to Customer a worldwide license to have Users access and use the Services listed on the Order for the duration of the Agreement. Other than this license 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. Other than as allowed by this Agreement, Customer will not: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Services; (b) distribute, transfer, 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) 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 export/import laws; 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 Fees that are due remain unpaid for more than thirty (30) days past the payment due date, or if Customer is in material breach of Section 10.2. 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 without Cause. Either party may terminate this Agreement or a particular Order without cause by giving the other party at least thirty (30) days prior written notice. If Customer has terminated without cause, all Fees that were not yet due become immediately due and payable as of the termination date, and Customer is not entitled to any refunds. If Zapproved has terminated without cause, Zapproved will within thirty (30) days after termination refund to Customer any amounts in pre-paid Fees that correspond to unused portions of a subscription term (prorated by day).
5.3. Termination for Breach. 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 Customer is not entitled to any refund of Fees that cover any unused portion of a subscription.
5.4. 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 Customer is not entitled to any refund of Fees that cover any unused portion of a subscription.
5.5. Effect of Termination. Upon termination for any reason, (a) Customer will 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 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, 5.5, 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. Customer Data. While using the Services, Customer will transfer and store data (such as e-mails, documents, names, contact information and other electronic information) (collectively, “Customer Data”) with Zapproved’s hosting provider(s) (“Hosting Provider”).
8.1. Definition. “Customer Data” means any information, in any form, which Customer discloses to Zapproved during the term of this Agreement (including all information that Customer transfers into the Services or that is generated by the Services from Customer Data (such as reports)). 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.
8.2. 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. Neither Zapproved nor its Hosting Provider will use the Customer Data for any other purpose; provided, that Zapproved may use Customer Data in anonymized and aggregated form in analyzing and reporting on industry trends.
8.3. 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/e-discovery-software/security/ 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. In the event of the unauthorized access to or disclosure of Customer Data (a “Data Breach”), (a) Zapproved will promptly notify Customer and will cooperate with Customer’s efforts to resolve the Data Breach, and (b) if the Data Breach was the direct result of the gross negligence or willful misconduct of Zapproved personnel, Zapproved will pay for all costs and expenses (including reasonable attorney fees) incurred by Customer that are necessary to remedy the Data Breach (including the costs and expenses of any notices or credit and identity protection required by law with respect to any Personal Information). 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.
8.4. Confidentiality. This paragraph applies to any Customer Data that is marked as “confidential” when disclosed or that Zapproved knew or should have known under the circumstances was considered confidential by the Customer (including without limitation any Customer Data that is loaded into the Services) (“Confidential Customer Data”). Zapproved will not disclose Customer Confidential Data to any third-party, except as may be allowed by this paragraph, and will protect the confidentiality of Confidential Customer Data in the same manner that Zapproved protects its own confidential information (which will be at least a reasonable standard of care). Zapproved will limit access to Confidential Customer Data to those of its employees and contractors (including the Hosting Provider) who have a need to know such information in order to provide the Services, and all such persons will be under obligations of non-disclosure that are no less protective than those of this paragraph. However, the obligations of this paragraph do not apply after three (3) years from the termination of this Agreement, or to any Confidential Customer Data that (i) was known to Zapproved prior to Customer’s disclosure, (ii) is publically disclosed without restriction through no fault of Zapproved, or (iii) was independently developed by Zapproved without use of the Customer Confidential Data. Furthermore, Zapproved may disclose any Customer Confidential Data pursuant to any legal proceeding or as otherwise required by law, subject to Zapproved giving reasonable prior notice of such compelled disclosure to Customer, and cooperating with Customer’s attempts to seek protective or other orders to prevent or limit such disclosure.
9. Confidential Zapproved Information. During the course of this Agreement Zapproved may disclose to Customer information that is marked as “confidential” when disclosed or that Customer knew or should have known under the circumstances was considered confidential by the Zapproved (“Confidential Zapproved Information”). Customer will not disclose Confidential Zapproved Information to any third-party, except as may be allowed by this paragraph, will protect the confidentiality of Confidential Zapproved Information in the same manner that Customer protects its own confidential information (which will be at least a reasonable standard of care), and will use the Confidential Zapproved Information only in connection with the Services. Customer will limit access to Confidential Zapproved Information to those of its employees and contractors who have a need to know such information in order to enjoy the benefits of the Services, and all such persons will be under obligations of non-disclosure that are no less protective than those of this paragraph. However, the obligations of non-disclosure in this paragraph do not apply after three (3) years from the termination of this Agreement, or to any Confidential Zapproved Information that (i) was known to Customer prior to Zapproved’s disclosure, (ii) is publically disclosed without restriction through no fault of Customer, or (iii) was independently developed by Customer without use of the Confidential Zapproved Information. Furthermore, Customer may disclose any Confidential Zapproved Information pursuant to any legal proceeding or as otherwise required by law, subject to Customer giving reasonable prior notice of such compelled disclosure to Zapproved, and cooperating with Zapproved’s attempts to seek protective or other orders to prevent or limit such disclosure.
10. Representations and Warranties; Disclaimer.
10.1. 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, rules and regulations, (c) in the form provided by Zapproved, the Website, Services, and any software that Zapproved provides for local installation do not contain any Harmful Code (defined below), and (d) to the best of Zapproved’s knowledge, use of the Services as authorized by Zapproved will not violate or infringe upon the intellectual property rights of any third party. “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.
10.2. 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, rules 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 8.2, (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.
10.3. 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.
11.1. 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 from or relates to a material breach of the Indemnifying Party’s warranties and representations in Section 10 (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 the Claim.
11.2. Exceptions. Zapproved has no obligation as an Indemnifying Party with respect to any Claim based upon or otherwise relating to (a) any use of the Services that is not 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.
11.3. Conditions. An Indemnifying Party’s obligations under Section 11.1 are conditioned on (a) Defendants notifying the Indemnifying Party immediately upon receiving a Claim and providing a written copy of the Claim, (b) Defendants cooperating with the Indemnifying Party in the defense or settlement of the Claim, and (c) Defendants providing the Indemnifying Party with all necessary authority to defend or settle the Claim. A Defendant may participate in the defense or settlement of the Claim at its own expense.
11.4. Injunctions. Following notice of a Claim, or if in its discretion Zapproved determines that a 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.
11.5. Exclusive Remedy. This Section 11 states each party’s sole liability and sole remedy for indemnification that arises from or relates to this Agreement.
12. Limitation of Liability. EXCEPT AS STATED BELOW, EACH PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT IS LIMITED AS FOLLOWS:
(A) NEITHER SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, LOST DATA OR LOST SAVINGS) (“INDIRECT DAMAGES”); PROVIDED THAT THIS LIMITATION SHALL NOT APPLY TO CLAIMS THAT ARISE FROM THE UNLICENSED USE OF THE SERVICES OR ANY SOFTWARE, BREACHES OF SECTIONS 8.3 (DATA SECURITY), 8.4 (CONFIDENTIALITY), OR 9 (CONFIDENTIAL ZAPPROVED INFORMATION), AND FURTHER PROVIDED THAT ANY INDIRECT DAMAGES AWARDED TO A THIRD PARTY FOR WHICH A PARTY MUST INDEMNIFY THE OTHER WILL NOT BE LIMITED BY THIS RESTRICTION.
(B) NEITHER SHALL BE LIABLE TO THE OTHER 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 THE UNLICENSED USE OF THE SERVICES OR ANY SOFTWARE; AND PROVIDED FURTHER THAT THIS LIMIT WILL BE TEN TIMES (10X) THE AMOUNTS PAID OR PAYABLE WITH RESPECT TO CUSTOMER’S AND ZAPPROVED’S RESPECTIVE DEFENSE AND INDEMNITY OBLIGATIONS UNDER SECTION 11.1, AND TO CLAIMS THAT ARISE FROM A MATERIAL BREACH CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF CUSTOMER OR ZAPPROVED.
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.
13. 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.
14. 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.
15.1. 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.
15.2. 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.
15.3. 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.
15.4. 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.
15.5. Attorneys’ Fees. The prevailing party in any action to enforce this Agreement will be entitled to recover costs and expenses including reasonable attorneys’ fees.
15.6. Remedies. Except where this Agreement expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative.
15.7. 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.
15.8. Construction. Section headings in this Agreement are for convenience only. The word “including” is not intended to be limiting. No rule of strict construction is to be used when interpreting this Agreement.
15.9. Assignment. Neither party may assign or otherwise transfer this Agreement or any of its rights hereunder, nor delegate any of its obligations hereunder, to any third party without the prior written consent of the other party; provided, however, that a party may upon written notice to the other party (i) assign this Agreement to any entity that acquires all or substantially all of such party’s assets or its business that is the subject hereof, or (ii) assign this Agreement to any entity that is owned by such party.
15.10. 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.