UserZoom Master Services Agreement
This MASTER SERVICES AGREEMENT (this “Agreement”) is entered into by and between UserZoom (defined below), and the “Customer” identified in one or more mutually-executed Order Forms (defined below) referencing and incorporating this Agreement, and shall be effective upon the date of execution of the first such Order Form (the “Effective Date”). This Agreement includes and incorporates all Exhibits, schedules, addendums and attachments and such documents shall have effect as if set out in full in the body of this Agreement.
“UserZoom” shall mean either: (i) the UserZoom entity which enters into the first Order Form with Customer; or (ii) in the event Customer is purchasing the Services via the website the UserZoom entity shall be either: (a) User Zoom, Inc., a California corporation with offices at 1801 Broadway, Suite 720, Denver, CO 80202 if Customer is located in North America, Mexico or a country in Central or South America or the Caribbean; (b) UserZoom Limited a company incorporated and registered in England and Wales with company number 06984058 whose registered office is at Unit 11, Royal Mills, Redhill Street, Manchester M4 5BA if Customer is located in Europe (excluding Austria, France, Germany, Spain or Switzerland), the Middle East, Africa, Asia or the Pacific region; (c) UserZoom Technologies Inc. Sucursal in Espana a Spanish branch company ("UserZoom SL") if Customer is located in Spain; (d) UserZoom GmbH if Customer is located in Austria, Germany or Switzerland; or (e) Panisero SAS if Customer is located in France.
1. Subscriptions
UserZoom owns certain proprietary software applications and services and has developed and maintains proprietary software and hardware systems that enable and support web-based delivery of such applications and services, which includes the applicable web-based, self-service digital user testing and customer experience measurement solution(s) offered by UserZoom (the “Self-Service Solution”). Among its many features, the Self-Service Solution enables Customer Users (as defined below) to (a) depending on the type of Customer User, create, design or manage studies that involve the testing and evaluation of web sites, mobile sites, mobile applications and web applications (“Studies”) and/or (b) depending on the type of Customer User, invite individuals (“Participants”) to participate in those Studies by taking online surveys, completing task-based studies, and providing other feedback. The Ordered Software Service(s), together with the Related Services, both of which are defined below, shall collectively constitute the “Services”.
a. From time to time during the Term (as defined below), Customer and its Affiliates (as defined below) may subscribe for the Self-Service Solution by entering into an ordering document (each, an “Order Form”) that sets forth the terms under which UserZoom will make such solution (the “Ordered Software Service(s)”) available to Customer. For the purposes hereof, an “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with UserZoom or Customer. “Control,” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. UserZoom’s corporate affiliates may also enter into an Order Form(s) with Customer and/or its Affiliates. References to “UserZoom” in this Agreement shall be deemed to be references to the relevant UserZoom affiliate under the applicable Order Form.
b. Each Order Form will set forth the start date (the “Subscription Start Date”), the end date (the time between the two being the “Subscription Period”), the authorized scope of use (the “Scope of Use”), the fees payable, payment terms and any other terms to which the parties may agree. Each Order Form or SOW (as defined below) shall incorporate the terms of this Agreement by reference and shall be deemed a part hereof. In conjunction with the execution of an Order Form, UserZoom shall provide Customer with access to its standard user guide for the Self-Service Solution (collectively, along with the product description (if any) attached to the applicable Order Form, the “Documentation”). For the avoidance of doubt, should there be any conflict between this Agreement, an SOW and/or the terms of an Order Form, the relevant terms of the Order Form and/or SOW shall prevail.
c. Each Order Form or SOW shall be agreed in the following manner:
i. Customer shall request an Order Form or SOW for the relevant Services;
ii. UserZoom shall provide Customer with a draft Order Form or SOW (as applicable) and discuss and agree on the content thereunder with Customer in good faith; and
iii. An authorized signatory from each party shall then execute the relevant Order Form or SOW either: (i) by signing thereunder; (ii) through another mutually agreed execution process that does not require signatures upon which such Order Form or SOW shall be deemed executed by the parties and subject to the terms of this Agreement.
2. UserZoom Services
In connection with the Customer’s use of the Self-Service Solution, UserZoom will perform the following related services (collectively, the “Related Services”) during the applicable Subscription Period:
a. UserZoom will provision user accounts (i.e., username/password pairs) for the Self-Service Solution for each user designated by Customer’s “Administrator” identified in the Order Form (each a “Customer User”), up to the number of Customer User accounts allowed under the Order Form.
b. UserZoom will host and maintain the Self-Service Solution and the other software utilized by UserZoom to deliver the Self-Service Solution (collectively, the “Software”) on servers operated and maintained by or at the direction of UserZoom in a secure, fault-tolerant, seismically-compliant data center that shall at all times comply with the relevant data protection legislation, including the Data Protection Act 2018, General Data Protection Regulation 2016/679 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as amended and/or updated from time to time (“Data Protection Legislation”) (the “Data Center”) in accordance with the applicable terms set forth at https://www.userzoom.com/sla/ (the “SaaS Delivery Services Exhibit”).
c. UserZoom will provide Customer with the customer support services described at http://www.userzoom.com/customer-support/ (the “Customer Support Exhibit”).
d. If Customer desires assistance with study research, set-up, top-line data analysis, organization of results, reports, or other services (collectively, “Professional Services”), such Professional Services shall either be identified in the applicable Order Form or be documented in a separate statement of work (each, a “SOW”) for the fees set forth therein. All SOWs will incorporate and be subject to the terms of this Agreement.
e. If requested by Customer, assist with the sourcing of Participants in accordance with the terms of the Order Form.
f. Customer agrees that its purchase of the Software or Services is not contingent on the delivery of any future functionality or features thereof, or dependent on any oral or written comments made by UserZoom regarding such future functionality or features.
3. Access to the Self-Service Solution
a. Subject to the terms of this Agreement, UserZoom hereby grants Customer’s named internal business group or team, as specified in the applicable Order Form (“Workgroup”) a non-exclusive, non-transferable, royalty-free right to access and use the Self-Service Solution during the Subscription Period set forth in the applicable Order Form to: (i) create, design, submit content to, manage and access the results of Studies; (ii) invite Participants to view, submit content to, and otherwise participate in Studies; and (iii) otherwise use the features and functionality of the Self-Service Solution for Customer’s internal business purposes, all subject to the Scope of Use limitations set forth in the Order Form and the other terms and conditions of this Agreement. Unless otherwise stated on the relevant Order Form, where UserZoom Team, UserZoom Experience, or UserZoom Corporate plans; or UserZoom Go or EnjoyHQ products, are stated the Customer shall be granted a license to use those products on a seat basis.
b. Each account may be used only by the individual Customer User to whom it is assigned. Customer may re-assign Customer User accounts by written notice to UserZoom, which may be given via email from the Administrator designated in the Order Form; provided, that Customer may not re-assign Customer User accounts for the purpose of defeating the limit on Customer Users set forth in the Order Form. Customer may designate its (and its Affiliates’) employees or independent contractors as its Customer Users; provided, that (i) Customer remains responsible for all use and misuse of the Self-Service Solution that occurs under Customer Users’ login credentials and for any breach of this Agreement by any of its Customer Users, (ii) Customer agrees to notify UserZoom of any unauthorized access or use of which Customer becomes aware, and (iii) all usage of the Self-Service Solution by Customer Users is subject to the Scope of Use limitations set forth in the Order Form.
c. Customer will not (and will ensure that Customer Users do not): (i) “frame,” distribute, resell, or permit access to the Self-Service Solution by any third party other than to invite Participants to participate in Studies in accordance with this Agreement; (ii) permit multiple Customer Users to access the Self-Service Solution using shared login credentials; (iii) use the Self-Service Solution other than in compliance with this Agreement and applicable laws; (iv) reverse engineer, attempt to gain unauthorized access to the Self-Service Solution or attempt to discover the underlying source code or structure of the Self-Service Solution; (v) submit to the Self-Service Solution any content or data that is false, defamatory, illegal or violates a third party’s rights; or (vi) submit to the Self-Service Solution any routine, device or other undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, system or service.
d. UserZoom monitors all use of the Self-Service Solution for security, operational, product improvement and product performance purposes. UserZoom may temporarily suspend a particular Customer User’s access in the event that UserZoom in good faith suspects that: (i) such Customer User is engaged in any unauthorized conduct; or (ii) there has been unauthorized access to such Customer User’s account. UserZoom will provide Customer with prompt notice if it suspends a Customer Users’ access to the Self-Service Solution pursuant to this Section 3(d) and will restore access as soon as reasonably practicable once the situation is remedied.
e. The Services may contain features designed to interoperate with software applications not provided by UserZoom (“Non-UserZoom Applications”). To use such features, Customer may be required to obtain access to Non-UserZoom Applications from their providers (and to enter into and maintain any relevant agreement(s) with such third party providers), and may be required to grant UserZoom access to its account(s) on the Non-UserZoom Applications. UserZoom will not be deemed to be in breach of this Agreement nor shall UserZoom have any liability, to the extent any features of the Services cease to function because the provider(s) of the corresponding Non-UserZoom Applications ceases to make their software application(s) available for proper interoperation with features of the Services. UserZoom shall not be responsible for any disclosure, modification, deletion or loss of Customer Content resulting from access by Non-UserZoom Applications.
4. Customer Responsibilities
a. Customer shall ensure that each Customer User will keep his or her account name and password confidential and notify UserZoom immediately upon learning of any unauthorized use of a Customer User account name or password. Customer will be responsible for all activities and charges incurred through the use of its Customer Users’ account names and passwords.
b. The Self-Service Solution includes a feature that allows Customer to record a Participant’s activity on a web site or application tracked as part of a Study (“UserZoom Recorder”). If Customer uses UserZoom Recorder to collect any information from Participants sourced by Customer, Customer is responsible for obtaining the necessary consents from and disclosing to Participants the information that Customer will collect, how Customer will use that information, and make any other disclosures required by the Data Protection Legislation (which may be done within the Self-Service Solution).
c. If applicable, reports may be furnished by UserZoom in connection with its provision of competitive benchmarking Services (“Reports”), such Reports are UserZoom’s proprietary and confidential information and may not be used, copied, or displayed without UserZoom’s prior written consent in each instance. Upon Customer’s purchase of the Report, UserZoom grants Customer a license to use this Report solely for the purpose of disseminating information within the relevant Workgroup (as displayed on the relevant Order Form) of Customer’s organization only. Customer may not distribute, resell, or permit access (for financial compensation or otherwise) to the Report by any third parties. All and any intellectual property rights in this document shall remain vested in UserZoom at all times. Customer acknowledges and accepts that this report is truthful and accurate based on the results of the Study at the point in time the Study was completed.
5. Customer Content
a. As between the parties, Customer retains all right, title and interest in: (i) any and all data, files, attachments, text, images, and other content that Customer Users upload or submit to the Self-Service Solution or otherwise provides to UserZoom in connection with the Services (collectively, “Customer Content”); and (ii) the reports and information about Studies obtained by Customer from UserZoom as part of the Services (“Study Content”). Customer represents and warrants that it has all rights, permissions and consents necessary to (1) submit all Customer Content (excluding survey answers and other data and content submitted to the Self-Service Solution by Participants) to UserZoom, (2) grant UserZoom the limited rights to use Customer Content set forth in this Agreement, and (3) disclose and display Customer Content to its Customer Users and Participants.
b. Notwithstanding any other provision of the Agreement, Customer agrees that UserZoom may use the Customer Content, Study Content and data derived from use of the Services: (i) to make the Services available to Customer in accordance with this Section 5, including without limitation by displaying Customer Content and Study Content (as relevant) to Participants and Customer Users; (ii) to make Customer Content and Study Content available on a confidential basis to such of UserZoom’s service providers who act on UserZoom’s behalf in providing the Services; and (iii) for UserZoom’s legitimate business purposes provided they do not include any personally identifiable information.
c. The Self-Service Solution includes a feature that allows Customer to download Customer Content and Study Content during the applicable Subscription Period. UserZoom will retain Customer Content and Study Content for: 90 days in relation to the UserZoom platform; or up to 30 days in relation to the UserZoom Go platform; or up to 2 months in relation to the EnjoyHQ platform (please refer to https://documentation.getenjoyhq.com/article/oz7xmflphv-data-storage-retention), after expiration or termination of the relevant SOW or Order Form (the “Retention Period”) and, upon Customer’s written request during this Retention Period, will make available for download Customer Content and Study Content to Customer. After the Retention Period (or as soon as reasonably possible after Customer’s written request during the Retentio
d. Customer agrees that it will not solicit contact information from UserZoom-provided study Participants sourced by UserZoom, or contact such Participants outside of the specific study for which such Participants were sourced.
e. Customer agrees to not collect or attempt to collect, or otherwise solicit through the Self-Service Solution and/or its use thereof, any Prohibited Personal Information (as defined below) that may be of a “sensitive” nature or otherwise regulated by data specific privacy laws or subject to special processing restrictions or requirements, including without limitation: information relating to minors, bank account or card information, credit information, social security numbers or other government-issued identification numbers or information, protected health information (e.g., under HIPAA), educational records or information (e.g., under FERPA), and any other information regulated by GLBA, FCRA or COPPA (the foregoing, “Prohibited Personal Information”). If Customer discovers that any Prohibited Personal Information has been submitted to the Self-Service Solution, Customer will immediately notify UserZoom of such disclosure, and upon UserZoom’s receipt of such notification, the parties shall promptly work together and cooperate in good faith to comply with Data Protection Legislation with respect to such information. Customer acknowledges the risks inherent in respect of Prohibited Personal Information, and Customer disclaims all liability against UserZoom for any claims, causes of action, damages, judgments, settlements, and costs asserted by a third party or Customer as a result of the collection, use, transfer, or other processing of Prohibited Personal Information
6. Security and Data Privacy
a. Customer shall at all times be data controller and UserZoom data processor (both as defined under the Data Protection Legislation) of any personal data generated, transferred, processed or otherwise reproduced under this Agreement or any Order Form and the parties agree to comply with the terms of the Data Processing Agreement in relation to any processing of personal data.
b. If UserZoom becomes aware of a security incident that may affect Customer Content or Study Content, UserZoom will promptly (in any event within 48 hours) notify Customer (which may be given via email to Customer’s Administrator). In the event of a security incident, UserZoom shall use its commercially reasonable efforts to: (i) conduct an investigation of the reasons for and circumstances surrounding the incident; (ii) prevent, contain and mitigate the impact of the incident; and (iii) collect and preserve all evidence concerning the discovery, cause, remedial actions and impacts related to the incident.
7. Fees and Payment Terms
a. Customer shall pay UserZoom the annual subscription fees listed on each Order Form (“Subscription Fees”) in accordance with the terms contained therein. If Professional Services are required in connection with Customer’s access of the Self-Service Solution, Customer shall pay UserZoom the Professional Services fees outlined in the applicable Order Form or SOW, as the case may be, in accordance with the terms contained therein and shall pay any and all reasonable out-of-pocket expenses incurred by UserZoom in connection with the provision of such Professional Services, including but not limited to travel to Customer premises. Prepaid Professional Services also may be included as part of the bundled Subscription Fees pursuant to the applicable Order Form.
b. Except as otherwise provided in an Order Form or SOW, all fees are invoiced in full in advance on or around the Subscription Start Date (and any anniversary thereof in relation to multi-year Services), and invoices are payable net 30 days from invoice date.
c. Fees payable under this Agreement do not include any taxes, levies or duties or similar including but not limited to local, state, federal, value-added, use or withholding taxes (together “Taxes”), all of which are the responsibility of Customer. UserZoom will apply Taxes to invoices based upon where the Customer has stated the Services will be used. The Customer will inform UserZoom if the location in which the Services are used changes and is responsible for any additional Taxes due as a result. It is the Customer’s responsibility to pay all Taxes related to the Services. Customer shall make all payments under this Agreement without withholding or deduction of, or in respect of, any Taxes unless required by law. If any such withholding or deduction is required, Customer shall pay to UserZoom such additional amount as will ensure that UserZoom receives the same total amount that it would have received if no such withholding or deduction had been required. In the event UserZoom is required to pay or collect Taxes for which the Customer is responsible, UserZoom will be entitled to reimbursement of such amount unless the Customer provides a valid tax exemption certificate.
d. Customer will send payments to the payment address specified on each invoice or as otherwise instructed by UserZoom. Unless otherwise provided in an Order Form, all amounts under this Agreement are payable in U.S. dollars (if the entity referred to herein as “UserZoom” is User Zoom, Inc.) or either GBP (if the entity referred to herein as “UserZoom” is UserZoom Limited) or Euros (if the entity referred to herein as “UserZoom" is UserZoom SL, UserZoom GmbH or Panisero SAS) and, except as expressly otherwise provided herein or in the Order Form, all fees are nonrefundable once paid. Fees are based on Services ordered and not actual usage thereof.
e. Research hours or participant credits purchased by Customer that has not been used prior to the expiration of an Order Form shall be capable of being carried over to the renewal subscription periods until there is a break in service due to the Customer not renewing. In the event Customer does not renew, the remaining credits will be carried forward if the Customer reinstates its subscription within 365 days from the most recent subscription termination date.
f. If a payment for an invoice is not received by UserZoom by the due date and without prejudice to any other rights or remedies available to UserZoom: (i) UserZoom may, if such failure to pay is not reasonably disputed in good faith (in which case, both parties agree to work in good faith to resolve such dispute as soon as reasonably possible) or remedied within 15 days of Customer’s receipt of notice thereof from UserZoom (which may be served via email), temporarily suspend Customer’s access to the Self-Service Solution and provision of the Related Services until all payments currently due from Customer are received by UserZoom; and (ii) interest shall accrue on such due amounts from the due date until the date such amounts are fully paid, at the maximum rate permitted by applicable law or 1.5% of the outstanding balance per month where no rate is specified at law.
8. Term and Termination
a. Unless earlier terminated in accordance with the terms hereof, this Agreement will commence on the Effective Date and will continue until either party gives to the other party written notice to terminate (with termination being effective upon such other party’s receipt of such notice), provided that there are no Order Form(s) or SOW(s) then in effect (the “Term”). UserZoom shall be entitled to terminate an SOW if the Customer fails to provide instructions or engagement required for a period of 15 calendar days unless otherwise stated in an SOW. Notwithstanding the foregoing, if there are Order Form(s) or SOW(s) being contemplated by the parties but which have not yet been executed prior to termination in accordance with the immediately preceding sentence, the terms and conditions of this Agreement shall govern and survive until the expiration or earlier termination of such Order Form(s) or SOW(s).
b. Subscriptions to use the Self-Service Solution begin on the Subscription Start Date specified in the relevant Order Form(s) and continue for the Subscription Period set forth therein. In the event of termination or expiration of an Order Form or SOW, this Agreement shall continue to apply to any other Order Forms or SOWs still in effect.
c. Either party may terminate this Agreement or the applicable Order Form or SOW upon written notice to the other if the other party commits a material breach of its obligations hereunder and the breaching party fails to cure such breach within 30 calendar days following its receipt of written notice specifying the breach (or 15 calendar days in the case of non-payment except where the non-payment is the result of a good faith dispute over the invoice). If Customer validly terminates an Order Form or the Agreement for breach by UserZoom that remains uncured after 30 calendar days, Customer shall be entitled to receive a refund of any prepaid Subscription Fees in an amount prorated to reflect the period of time between the date the uncured breach occurred and the end of the period for which Customer has prepaid for such use. Similarly, if UserZoom validly terminates an Order Form, SOW or this Agreement for breach by Customer that remains uncured after 30 calendar days (or 15 calendar days in the case of non-payment except where the non-payment is the result of a good faith dispute over the invoice), Customer shall pay any and all unpaid fees covering the remainder of the committed Subscription Period under all impacted Order Forms, and any and all committed fees under all impacted SOWs.
d. Upon termination or expiration of this Agreement for any reason, all access rights granted to Customer hereunder shall immediately terminate and each party shall promptly return to the other party or destroy (and provide certification of such) all copies and originals of documents and other materials that contain or embody the other party’s Confidential Information (as defined below) that are in its possession (excluding the Customer Content and Study Content which is covered at Section 5(c)), and all forward obligations shall cease, except that Customer shall be obliged to pay all amounts: (i) under any and all Order Forms terminated by UserZoom, and (ii) for services rendered prior to termination by Customer. Sections 3(c), 5, 7 through 14, and 16 shall survive termination.
9. Confidentiality
As used herein, the “Confidential Information” of a party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other party (“Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The terms and conditions of this Agreement are the Confidential Information of each party, Customer Content and Study Content are Customer’s Confidential Information, and the system requirements and Documentation for the Self-Service Solution are UserZoom’s Confidential Information. Except as expressly permitted in this Agreement, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its accountants, attorneys, auditors, consultants, employees, professional advisors, and sub-contractors in connection with this Agreement, provided that such parties have entered into written confidentiality obligations with Receiving Party that are no less stringent than those contained herein. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law or a regulatory body, provided that the Receiving Party: (i) gives the Disclosing Party prior notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (ii) uses diligent efforts to limit disclosure and to obtain confidential treatment or protective order; and (iii) allows the Disclosing Party to participate in the proceeding. For the avoidance of doubt, disclosure of Confidential Information arising out of a security incident as described in Section 6 does not constitute a breach of either party’s obligations under this Section 9. Confidential Information does not include any information that: (1) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (2) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (3) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party. The Receiving Party will return or destroy all Confidential Information upon the Disclosing Party’s request after the termination or expiration of this Agreement and (if requested by the Disclosing Party) certify such return or destruction in writing.
10. Intellectual Property Rights
UserZoom and its licensors retain all right, title and interest in and to: (i) the Self-Service Solution, the Software and the other technology used to provide it; (ii) all electronic and print documentation, audio and video material, and other content and data (excluding Customer Content and Study Content) made available through or otherwise in connection with the Self-Service Solution or Related Services, including without limitation, Reports; (iii) all software code and other materials, ideas or deliverables that are created or prepared by UserZoom in connection therewith, including any customizations of the Self-Service Solution (but excluding any Customer Content, Study Content, or other Confidential Information of Customer incorporated therein); and (iv) all intellectual property and proprietary rights in the foregoing. Except for Customer’s rights to access and use the Self-Service Solution set forth in this Agreement, nothing in this Agreement licenses or conveys any of UserZoom’s intellectual property or proprietary rights to anyone, including Customer. Customer agrees that UserZoom will have a perpetual right to use and incorporate into its Services any feedback or suggestions for enhancement that Customer, Customer Users or Participants provide to UserZoom concerning the Self-Service Solution without any obligation or compensation.
11. Warranties
a. UserZoom will perform Professional Services in a professional, workmanlike manner in compliance with industry standards. Customer’s sole remedy for breach of this warranty shall be for UserZoom to re-perform non-conforming Professional Services.
b. UserZoom warrants to Customer during the applicable Subscription Period of a particular Order Form that the Self-Service Solution will operate in substantial accordance with its then-current Documentation. The foregoing warranty shall not apply to performance issues: (i) caused by factors outside of UserZoom’s reasonable control; (ii) that result from any actions or inactions of Customer or any third parties; or (iii) that result from Customer’s operating environment or systems. Customer’s sole remedy for UserZoom’s breach of this warranty shall be that UserZoom shall be required to use commercially reasonable efforts to modify the Self-Service Solution to achieve in all material respects the functionality described in the Documentation. If UserZoom is unable to restore such functionality as warranted within a reasonable time considering the severity of the error and its impact on Customer, Customer shall be entitled to terminate the relevant Order Form, in which case Customer shall be entitled to receive a refund of any prepaid Subscription Fees in an amount pro rated to reflect the period of time between the date Customer was unable to use the Self-Service Solution due to such non-conformity and the end of the period for which Customer has prepaid for such use. UserZoom shall have no obligation with respect to a warranty claim unless notified of such claim within 60 days of the first instance of any material functionality problem.
12. Disclaimers
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN SECTION 11 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ORDERED SOFTWARE SERVICE(S) AND RELATED SERVICES PROVIDED BY OR ON BEHALF OF USERZOOM ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USERZOOM DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. USERZOOM DOES NOT WARRANT THAT ACCESS TO THE SELF-SERVICE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SELF-SERVICE SOLUTION WILL MEET CUSTOMER’S NEEDS.
13. Indemnification
a. If any action is brought against Customer claiming that the Self-Service Solution infringes any patent issued as of the Effective Date or any copyright, trademark or trade secret of a third party, UserZoom will indemnify, defend and hold Customer harmless from and against any and all damages, losses, liabilities, settlements, costs and expenses (including without limitation reasonable costs and attorneys’ fees) (“Losses”) to the extent incurred by Customer in connection with any such infringement claim; provided, that UserZoom will not be obligated under this sentence to the extent any such infringement arises from (a) use of the Self-Service Solution in combination with technology or services not provided by UserZoom, (b) violation of Section 3(c), or (c) Customer Content. If an infringement claim described in this Section has been asserted, Customer will permit UserZoom, at UserZoom’s option, to: (i) procure the right to continue using the allegedly infringing item; (ii) replace or modify the allegedly infringing item to eliminate the infringement while providing functionally equivalent performance; or (iii) if either of the above is not commercially reasonable, terminate the affected Order Form and refund to Customer a pro-rated amount of any prepaid Subscription Fees relating to the Self-Service Solution based on the period of time between the date Customer was unable to use the Self-Service Solution and the end of the period for which Customer has prepaid for such use.
b. In the event Customer Content or Study Content is alleged to or does infringe or violate any intellectual property right or other legal right of any third party, Customer will indemnify and hold UserZoom harmless from and against any and all Losses incurred by UserZoom resulting therefrom provided, that Customer will not be obligated under this sentence to the extent any such infringement arises from unauthorized use of the Customer Content or Study Content.
c. In respect of a claim eligible for indemnification under this Section 13: (i) upon becoming aware of the claim, the indemnified party will promptly notify the indemnifying party (however lack or delay of notice shall not excuse an indemnification obligation except to the extent such lack or delay caused material prejudice to the ability to defend the relevant claim); (ii) each party will provide reasonable co-operation to the other party in the defense and settlement of the relevant claim; and (iii) the indemnifying party will, upon its written request, be given sole authority to defend or settle such claim, provided that (A) the indemnifying party keeps the indemnified party informed of the progress of its defense or settlement; and (B) the indemnifying party does not compromise or settle such claim without unconditionally releasing the indemnified party of all liability in respect of such claim. The indemnified party may be represented, at its own expense, by counsel of its own choosing.
14. LIMITATIONS ON LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE OR LOSS OF DATA.
EXCEPT FOR LIABILITIES ARISING UNDER SECTIONS 3(C), 9 AND 10, FOR CLAIMS FOR INDEMNIFICATION UNDER SECTION 13 OR ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY THAT EITHER PARTY MAY INCUR IN ANY ACTION OR PROCEEDING RELATING HERETO EXCEED THE AMOUNTS ACTUALLY PAID OR OWING TO USERZOOM HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE).
15. Insurance
a. If the entity referred to herein as “UserZoom" is UserZoom SL or UserZoom GmbH, then UserZoom will, at its expense, procure and maintain throughout the Term the following insurance coverage: (i) Employer’s Liability insurance in compliance with all applicable legal requirements; and (ii) Public and products liability policy with limits of $1,000,000 in the aggregate and each occurrence.
b. If the entity referred to herein as “UserZoom” is UserZoom Limited, then UserZoom will, at its expense, procure and maintain throughout the Term the following insurance coverage: (i) Employer’s Liability insurance in compliance with all applicable legal requirements (with a minimum coverage of £5,000,000); (ii) Public and products liability policy with limits of $2,000,000 in the aggregate and each occurrence; and (iii) Professional indemnity insurance with limits of no less than $2,000,000 per occurrence.
c. If the entity referred to herein as “UserZoom" is UserZoom Inc., then UserZoom will, at its expense, procure and maintain throughout the Term the following insurance coverage: (i) Employer’s Liability insurance in compliance with all applicable legal requirements; (ii) Public and products liability policy with limits of $2,000,000 in the aggregate and each occurrence; and (iii) Professional indemnity insurance with limits of no less than $2,000,000 per occurrence.
d. Upon written request, UserZoom will provide Customer with evidence of insurance coverage in compliance with the requirements of this Section 15. UserZoom will give Customer, or cause its insurers to give Customer, at least thirty (30) days’ prior written notice of cancellation or non-renewal of any insurance policy that provides any of the coverage specified in this Section 15.
16. Free and Beta Trials
a. UserZoom may provide the Customer with access to the Self-Service Solution or any part thereof (and any related services) as part of a free or beta version trial (“Trial”).
b. Any such Trial will end at the earlier of: (i) the end of the Trial period specified on the Order Form; (ii) the start date of any subscriptions purchased by Customer for the same Software or Services; or (iii) termination by UserZoom in its sole discretion.
c. Notwithstanding anything to the contrary herein, UserZoom provides the Trial “as-is,” without any warranty (whether express or implied), covenant, commitment, or liability whatsoever, to the maximum extent permitted by law. UserZoom makes no commitments whatsoever with respect to the features, functionality, service levels, support or availability made available as part of a Trial and reserves the right to change such features and functionality at any time without notice and in its sole discretion.
17. Miscellaneous
a. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes and excludes all other oral or written representations, understandings or agreements relating to the subject matter hereof (including those terms contained within any purchase order). If any provision in this Agreement is unenforceable, it will be deemed reformed to the nearest enforceable provision, or severed from this Agreement if that is impermissible, and the remainder of this Agreement will remain in full force and effect. Failure to enforce a provision in this Agreement will not constitute a waiver of that provision, and a waiver of a provision will be binding only if made in writing by the waiving party.
b. Except where this Agreement permits notice via email, all notices under this Agreement must be in writing and delivered by hand or by pre-paid first class post to the registered office of the other party, and shall be deemed served; (a) on signature if delivered by hand; (b) at 9:00am on the second business day after posting; or (c) if sent by email, at the time of transmission, or, if this time falls outside of business hours, at 9:00am the following business day in the location of receipt.
c. Neither party may assign or transfer any of the rights or obligations under this Agreement without the prior written consent of the other party; provided, that either party may assign this Agreement and all Order Forms and SOWs to an Affiliate or an entity that has acquired all or substantially all of its assets or capital stock as successor to the business and, provided further, that any such assignment by Customer shall be subject to the Scope of Use contained in the applicable Order Form. Any attempted assignment in violation of the terms of this Agreement shall be void and of no force or effect.
d. Neither party may vary the terms of this Agreement or an individual Order Form or SOW unless documented in writing signed by an authorized signatory of each party (in the case of an SOW or Order Form, the parties must follow the process outlined in Section 1(c) above).
e. Each of the parties hereto is an independent contractor and neither party is an agent, distributor, or representative of the other. The employees of one party will not be deemed to be employees of the other party. Neither party will act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
f. This Agreement shall be governed by and construed in accordance with (a) the laws of the State of California, U.S.A., if the entity referred to herein as “UserZoom” is User Zoom, Inc., and (b) the laws of England and Wales, and both parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales in connection with any dispute arising out of this Agreement if the entity referred to herein as “UserZoom” is UserZoom Limited or UserZoom GmbH or UserZoom SL or Panisero SAS; without regard to the conflict of laws principles of the applicable governing law. In the event of any action for the breach of this Agreement., the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses incurred in connection with such action.
g. Neither Customer (except for payment due under the Agreement) nor UserZoom will be liable for delays or non-performance of any of its obligations to the extent caused by any event or circumstance beyond its reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, pandemics, strikes or other labor problems or Internet service provider failures or delays.
h. The parties will comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption, including without limitation the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010, as such amended. If either party learns of any violation relating to this Agreement, they shall promptly notify the other party.
i. If and as relevant to the engagement hereunder, the Self-Service Solution and/or Services (including all intellectual property therein and derivatives thereof) may be subject to applicable export laws and regulations of the United States and other jurisdictions. The parties hereby each represent that it is not named on any U.S., U.K. or Spanish government denied-party list. Customer shall not permit any individual to access or use the Self-Service Solution or Services in a U.S.-embargoed country (currently Crimea, Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S., U.K., Spanish or other applicable export law or regulation.
j. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
