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Zeal Hosted Services Agreement

This Hosted Services Agreement (the “Agreement”) is made between Zeal Global Inc., a Delaware corporation (“Zeal”), and the company that is executing this Agreement, (hereinafter, “Customer”) with Zeal and this Agreement shall govern the Services (as defined below) provided to Customer as referenced herein, and shall be effective as of date of purchase of Services (“Effective Date”). 

Agreeing to the terms herein, creates certain rights and responsibilities. If you execute this agreement, on behalf of a non-individual legal entity such as a company, you claim the authority to bind such legal entity to the terms of this Agreement. By executing this Agreement, whether by signature, by clicking a box online, by purchasing Services through Zeal’s Website and acknowledging agreement of the terms set forth herein, or by any other legally recognized method, you represent and warrant that you have read and understood it, you have the authority to bind your company or organization to its terms and conditions and you agree to its terms. 

The following terms and conditions govern all access and use of Zeal’s website and all content, services and products available at or through the website, including but not limited to, electronic signature services, online uploads, display, delivery, acknowledgment, contract data, and storage services for documents and electronic contracts (collectively, the “Hosted Services”). Zeal shall perform professional services only set forth in any duly executed Quote (“Professional Services”) as applicable. The Hosted Services and Professional Services shall collectively be referred to herein as the “Services”. Zeal makes no promises or representations whatsoever as to the amount of business Customer can expect at any time under this Agreement.

In consideration of the mutual covenants and promises contained herein and for other good and valuable consideration, and intending to be legally bound, the parties agree as follows:

1.0 DEFINITIONS 
1.1 Active Documents” – Documents that reside in your binder structure, not listed in your Archive.
1.2 Agreement” – this Hosted Service Agreement.
1.3 Archived Documents” – Documents that have been Archived and remain in your Zeal Archive folder.
1.4 Confirmation Document” – Document confirming the details of Customer’s online Service Plan purchase.
1.5 Corrections” – any corrections, changes, or workarounds we may provide you for any defects, errors, or malfunctions in our Software Product or systems.
1.6 Documentation” – our online knowledge base and support center, documentation, and help and training materials, including courses, quizzes and videos.
1.7 Force Majeure” – events beyond our control, such as an act of God or act of government, including but not limited to flood, fire, earthquake, civil unrest, act of terror, provider strike or other labor problem, internet service provider failure or delay, or denial of service attack.
1.8 Hosted Service” – the hosting infrastructure, access and services related to the online delivery of the Software Product, or any part thereof.
1.9 License” – the specific package of the Zeal product licensed, which determines the available license types and features. 
1.10 Malevolent Code” – code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.11 On-Premise Service” – the provision of licenses, support, and upgrades for the Software Product installed on your servers.
1.12 Other Applications” – any on or offline software application created or provided by you or any party other than Zeal, that interoperates with our Software Product or Hosted Service.
1.13 Premium Support” – Includes all features in our Standard Support and provides advanced support options which include 24/7 availability with access to support teams on holidays. Premium Support also includes a Customer Success Representative (“CSR”). CSRs provide dedicated training to make sure team-members find value in Zeal. CSRs highlight new features as they are released and help your team setup new integrations with other platforms. CSRs also provide customized webinars for both admins and end-users. CSRs also provide light administrative support as it relates to Zeal and provide leaders with a dedicated person to collect feedback and improve the Zeal experience.
1.14 Professional Services” – On demand, Project based and time-limit-defined work that may include but is not limited to the following: Cloud Management Consulting, Data Migration, Bespoke Feature Development, API Development, Data Administration, Workflow Management and Developer Support. 
1.15 Quote” – the ordering documents specifying the pricing terms for the Software Product, Hosted Service, Professional Services and Standard or Premium Support Service and other services as applicable provided by us to you, including any addenda and supplements thereto.
1.16 Software Product” – any computer programs, applications or scripts created by us and used or accessed by you, directly or indirectly, including all functionality described in the Documentation, or any part thereof.
1.17 Standard Support” – The basic technical support services provided to all Hosted Service customers. Standard Support includes the following:
 
  1. Open to 10 support cases per month at our support portal.
  2. Business hour service level agreement (SLA) response times tiered by priority. See Exhibit A.
  3. Business hours: Monday – Friday 8am – 6pm in your time zone.
1.18 User” – an individual authorized to use our Hosted Service, Software Product or Support Service.
1.19 We,” “we,”, “Us,” “us,” “Our,” or “our” – Zeal Global, Inc.
1.20 You,” “you,” “Your,” or “your” – the company or other legal entity represented by the person executing the Agreement, as well as affiliates of that company or entity.
1.21 Your Data” – any electronic data or information supplied by or for you and not part of our Software Product or Hosted Service, that is submitted, collected, processed or managed by or for you in conjunction with your use of the Hosted Service, Software Product, or Standard or Premium Support.
1.22 Your Data-Set“- your data and the configuration of business rules, workflows and other database attributes created or modified for you.
2.0 OUR OBLIGATIONS
2.1 Hosted Service. We will make the Hosted Service available to you pursuant to this Agreement, at the rates set out in §5.1. As part of the Hosted Service, we will take all reasonable measures to keep uptime at or above 99.9% (ninety-nine and nine tenths percent).  If, due to our error, our hosted servers are down more than .1% (one tenth of one percent) in a given month, you will be entitled to receive a 25% (twenty-five percent) credit for that month.  If, due to our error, our hosted servers are down more than .5% (one half of one percent) in a given month, you will be entitled to receive a 100% (one hundred percent) credit for that month.  In no event will you be entitled to a refund for downtime caused by regular maintenance (normally conducted during the hours of 9 p.m. – 3 a.m., Pacific Time), or a Force Majeure.
2.2 Software Product and Upgrades. We will grant you licenses to use our Software Product pursuant to this Agreement, at the rate detailed in your Confirmation, as set out in the fee table detailed in §5.1. We are constantly improving our Software Product and want you to benefit from such improvements. To that end, we will:
 
  1. Provide you with corrections, changes, or workarounds (“Corrections”) for any significant defects, errors, or malfunctions in our Software Product or systems, on a timely basis, given the nature and scope of the defect.
  2. Install upgrades of our Software Product to the hosted servers as soon as practical after they become available. We will promptly notify you of any upgrades that will significantly affect program functionality.
  3. Make release notes available and identify any significant impact upgrades may have on existing customization’s.
  4. Make available to you any revisions to the system Documentation developed to reflect upgrades and improvements to the Software Product.
2.3 Technical Support. We will provide our Standard Support to you at no additional charge or you can elect our Premium Support at the rates set out in Exhibit A. As part of the Standard Support, we will:
 
  1. Provide you with support for the most recent release of our Software Product. Following any new release, we will also provide you with support for the most recent previous version of our Software Product for 2 months.
  2. Our Standard Support covers support on standard functionality and Software Product defects. It does not include the provision of customization advice or Professional Services. Neither does it cover problems caused by your system administrator, such as your accidental or inadvertent destruction of your own data, or a Force Majeure.
  3. Further details of our Standard and Premium Support services are incorporated and attached as Exhibit A.
  4. Provide you with access to additional backup services as described in Exhibit A.
2.4 Protection of Your Data. We will take organizational, physical, and technical precautions to protect the security of Your Data, as described in the Documentation. These precautions will include measures for preventing access, use, modification or disclosure of Your Data by our employees and contractors except: 
 
  1. To provide the Hosted Service and prevent or address service or technical problems,
  2. As compelled by law in accordance with §7.4 (Compelled Disclosure) below, or
  3. As you expressly permit in writing.
3.0 RESTRICTIONS ON USE
3.1 Usage Limits. Our Software Product is subject to usage limits, including those based on the License and limits on the bandwidth of the subscription purchased. As specified in §4.1, the License permits a bandwidth of Active Documents detail in your Confirmation Document, and an unlimited volume of Archived Documents. You agree to stay within the bandwidth restrictions. If you exceed a contractual usage limit, you agree to pay for the additional necessary licenses or services promptly upon our providing you with a new Quote, and/or pay any invoice for excess usage in accordance with §5.2 (Invoicing and Payment).
3.2 Usage Control. You will be responsible for user compliance with this Agreement, as well as the accuracy, quality and legality of Your Data-Set, including the means by which you acquire Your Data. You agree to use commercially reasonable efforts to prevent unauthorized access to or use of our Hosted Service or Software Product, and to notify us promptly of any such unauthorized access or use. You agree to use our Hosted Service and Software Product only in accordance with this Agreement, the Documentation and applicable laws and government regulations. It is your responsibility to comply with any terms of service for Other Applications which you use in conjunction with our Hosted Service or Software Product.
3.3 Usage Restrictions. You will not (a) make any Hosted Service or Software Product available to, or use any Hosted Service or Software Product for the benefit of, anyone other than you or your users, or (b) sell, resell, license, sublicense, distribute, rent or lease the Hosted Service or Software Product. You will not use Your Data-Set or the Hosted Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third-party privacy rights, to store or transmit Malevolent Code, to interfere with or disrupt the integrity or performance of any Hosted Service or data not belonging to you, or attempt to gain unauthorized access to any Hosted Service or Software Product or its related systems or networks. You will not use Your Data-Set or the Hosted Service to circumvent a contractual usage limit, or to copy the Hosted Service or any part thereof, including a feature, function or user interface, except as permitted in writing by us. You will not frame or mirror any part of our Hosted Service or Software Product, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in the Documentation. You may not access any Hosted Service or Software Product in order to build a competitive product or service, or reverse engineer any Hosted Service, Data-Set or Software Product (to the extent such restriction is permitted by law).
3.4 External-Facing Hosted Service Behavior. You and your Users are solely responsible for complying with applicable law in any use of cookies or other tracking technologies, as well as the U.S. Digital Millennium Copyright Act. In addition, if You or your Users engage in any of the following activities, you may be deemed in material breach of this Agreement:
 
  1. You may not use or allow the use of the Hosted Service to display, store, process or transmit: corrupted files, hoaxes, frauds such as pyramid schemes or any other items of a destructive or deceptive nature; material that infringes or misappropriates a third party’s intellectual property or proprietary rights; that violates a third-party’s privacy rights; that violates applicable law; that is excessively profane; that is hateful or violent; that advocates racial or ethnic intolerance; that is intended to advocate or advance computer hacking or cracking; illegal software; Malevolent Code; or any other material that violates or encourages conduct that would violate any criminal laws, any other applicable laws, or any other third-party rights.
  2. You may not use, or allow anyone else to use the Hosted Service to: generate or facilitate unsolicited commercial email (spam). Spam activity includes, but is not limited to: sending email in violation of the CAN-SPAM Act or any other applicable anti-spam law; imitating or impersonating another person or email address, creating false accounts for the purpose of sending spam; mining or harvesting any web property (including any data not belonging to you) to find email addresses or other user account information; sending unauthorized mail via open, third-party servers; and sending email to users who have requested removal from a mailing list.
  3. You may not use, or allow anyone else to use, the Hosted Service in connection with illegal peer-to-peer file sharing; to engage in or promote gambling, to run a gambling operation; to sell, distribute or export prescription drugs or other controlled substances; to sell, distribute or promote drug paraphernalia; to corrupt minors; or to access any other service or website, directly or indirectly, in a manner that violates the terms for use of or access to such service or website.
3.5 Removal of Software Product and Other Applications. If a third party contends that any content in our Hosted Service or Software Product violates applicable law or third-party rights, and if we are directed to remove such content in our Software Product or Hosted Service, we will remove such content as soon as practical in an upgrade to our Software Product. If we receive information that integration with any Other Application may violate the terms set out in this or applicable law or third-party rights, and if we so notify you, you will promptly disable or modify such integration with the Other Application to resolve the potential violation. If you do not take the actions described in this subsection, we may disable your use of the applicable Software Product, Hosted Service or Other Application, or any part of any of these, until the potential violation is resolved.
3.6 Export Compliance. Our Hosted Service, Software Product, other technology we make available to you, and any derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit users to access or use any Hosted Service or Software Product in a U.S. – embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
3.7 Anti-Corruption. You agree that You have not received, been offered, solicited, or accepted any illegal (in accordance with applicable State and Federal law) or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement.
3.8 Anti-Terrorism. Neither Party is in violation of any U.S. Anti-Terrorism (including applicable Executive Orders) or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.
4.0 OTHER APPLICATIONS
4.1 Acquisition of Other Applications and Hosted Service. Any rights or obligations associated with the acquisition by you of other applications, products or services, and any exchange of data between you and any third party provider, are held between you and that provider. We do not warrant or support Other Applications.
4.2 Other Applications and Your Data-Set. If you install or enable any Other Application for use with our Hosted Service or Software Product, you may be required to grant permission to the provider of that Other Application to access Your Data-Set as required for the interoperation of that Other Application with the Hosted Service or Software Product. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by any Other Application.
4.3 Integration with Other Applications. The Hosted Service or Software Product may contain features designed to interoperate with Other Applications. To use such features, you may be required to obtain access to Other Applications from their providers, and may be required to grant us access to your account(s) for the Other Applications. If the provider of the Other Application ceases to make the Other Application available for interoperation with the corresponding Hosted Service or Software Product on reasonable terms, or changes the API in a manner which breaks the integration with the Software Product or Hosted Service, you will not be entitled to any refund, credit, or other compensation.
5.0 FEES AND PAYMENT
5.1 Fees. Except as otherwise stated herein, you agree that fee payment obligations are non-cancelable and fees paid are non-refundable. You understand that the amount of licenses and services purchased can be increased at any time but cannot be decreased until the end of the applicable term.  Fees are set forth in the Confirmation Document.
5.2 Invoicing and Payment. You will provide us with a valid purchase order or alternative payment authorization documents acceptable to us. We accept ACH, wire transfers, checks, credit card, and P-Card payments. If you opt for credit card or P-Card payment, you authorize us to charge such card for our Hosted Service and Software Product as set out in §5.1 for the initial term and any authorized renewal term(s) as described in §11.2 (Renewals) and §11.4 (Termination). All credit card and P-Card payments will be subject to a three percent (3%) service fee. Zeal will invoice customer monthly for services rendered.
5.3 Payment Due Dates. Invoiced charges are due 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
5.4 Overdue Invoices. If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
5.5 Suspension of Service and Acceleration. If any amount owed by you for our Hosted Service is 30 (thirty) or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend our Hosted Service to you until such amounts are paid in full. We will give you at least 15 days’ prior notice that your account is overdue, in accordance with §12.1 (Manner of Giving Notice), before suspending Hosted Service to you.
5.6 Payment Disputes. We will not exercise our rights under §5.4 (Overdue Charges) or §5.5 (Suspension of Hosted Service and Acceleration) above if you are disputing the relevant charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.7 Taxes. You are responsible for paying any required taxes not invoiced by us for any purchase under this Agreement.
5.8 Prospective Functionality. You acknowledge that your purchase of our Hosted Service or Software Product is not contingent on the delivery of any prospective functionality or features, or dependent on any oral or written comments made by us regarding future functionality or features.
6.0 PROPRIETARY RIGHTS AND LICENSE GRANTS
6.1 Reservation of Rights. Our Software Product is protected by domestic and international intellectual property laws and treaties, including copyright laws. Our Software Product is licensed, not sold. Whether you have paid for your licenses or not, you may only access and use our Software Product in accordance with this Agreement. Subject to the limited rights expressly granted hereunder, we reserve all of our rights, titles and interests in and to the Hosted Service and Software Product, including all of our related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
6.2 License by us to use our Software Product. We grant to you a specific license to use our Software Product, subject to this Agreement.
6.3 License by you to Host Your Data-Set. You grant us a limited term license to host your Data-Set, and any Other Applications and program code created by or for you, as necessary in conjunction with your use of our Hosted Service. Subject to the limited licenses granted herein, we acquire no right, title or interest in or to Your Data-Set, Your Data, or any Other Application.
6.4 License by you to use your Feedback. Subject to the restrictions on Confidential Data, you grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Hosted Service any suggestion, change request, recommendation, or other feedback provided by you or your Users relating to the operation of the Hosted Service.
6.5 Federal Government End use Provisions. We provide the Hosted Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Hosted Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
6.6 Third Party Software. Our Software Product may contain software which originated with third parties, and without limiting the general applicability of the other provisions of this Agreement, you agree: 
 
  1. The right, title and interest to any third-party software incorporated in the Software Product remains with the third-party, which supplied the same; and
  2. You will not distribute, disseminate, or otherwise provide any such third-party software available with the Software Product, in any manner, outside the scope set forth in this Agreement.
7.0 CONFIDENTIALITY
7.1 Definition. “Confidential Information” is all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, either expressly designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information may include, but is not limited to, business information or ideas, trade secrets, proprietary data, personnel data, suppliers, procedures, cost of merchandise, sales data, price lists, financial information, business plans, prospect names, business opportunities, confidential business reports, customer lists, data or contracts, computer software usage, technical reports on products and services, product data or specifications, technical know-how, formulae, diagrams, flow charts, drawings, source code, object code, program listings, test results, processes, inventions, research projects or product development.
7.2 Exceptions. Confidential Information will remain the exclusive property of the Disclosing Party, unless and until the Receiving Party can prove that it: 
 
  1. Became publicly known through no fault of the Receiving Party,
  2. Was properly and lawfully known to Receiving Party, without restriction, prior to disclosure by the Disclosing Party,
  3. Became properly and lawfully available to Receiving Party through a third party, or
  4. Was independently developed by Receiving Party.
7.3 Standard of Protection. Receiving Party will hold in confidence and not disclose Confidential Information to anyone, except as necessary to carry out the terms of this Agreement, or as authorized by the Disclosing Party in writing, and agrees to limit access to Confidential Information of the Disclosing Party to employees and contractors of the Receiving Party who have signed confidentiality agreements containing protections no less stringent than those herein.
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, the Receiving Party agrees to give the Disclosing Party prompt notice of the compelled disclosure. Receiving Party further agrees to give reasonable assistance to Disclosing Party, to the extent legally permitted, and at Disclosing Party’s cost, in any contest by Disclosing Party to the compelled disclosure.
8.0 WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations. Each party represents that it has entered into this Agreement in good faith and has the legal power to do so.
8.2 Unconditional Satisfaction Guarantee. We offer a 30 (thirty) day, full money-back guarantee on our Hosted Service and Software Product not including Professional Services provided by Zeal for on-boarding or implementation. You may cancel the Hosted Service for any reason within 30 days of your initial purchase order. This guarantee covers the software and hosted services directly related to the Zeal deployment. To cancel the order and receive a complete refund of any fees paid, please notify us per §12.1. If you elect to contract with Zeal for Professional Services, please note Professional Services are not covered under this Hosted Services Agreement and require a separate Scope of Work that will be accompanied by a separate guarantee.
8.3 Terminate for Convenience: Zeal reserves the right to terminate this Agreement without cause, within the first thirty (30) days of Customer execution of this Agreement. Zeal must give written notice to Customer of Zeal’s intent to terminate this Agreement without cause at any time during the thirty (30) days. If Customer paid any fees related to the retention of Services in this Agreement, Zeal will reimburse Customer the amount paid.
8.4 Limited Warranties. We warrant that we will not materially decrease the overall security of the Hosted Service during the applicable term; that the Hosted Service will perform materially in accordance with the applicable Documentation, that, subject to §4.3 (Integration with Other Applications), we will not materially decrease the functionality of the Hosted Service during the current term, and that the Hosted Service and Software Product will not introduce Malevolent Code into your systems. For any breach of the warranties described in this subsection, your exclusive remedies are those described in §11.4 (Termination) and §11.5 (Refund or Payment upon Termination).
8.5 Mutual Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, OUR SOFTWARE PRODUCT, ANY THIRD PARTY SOFTWARE, OR HOSTED SERVICE ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER OR NOT EXPRESS, IMPLIED, STATUTORY NOR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY SOFTWARE OR HOSTING PROVIDERS. WE MAKE NO REPRESENTATION AND WARRANTY WHATSOEVER WITH RESPECT TO THIRD PARTY SOFTWARE INCORPORATED INTO THE SOFTWARE PRODUCT.
9.0 MUTUAL INDEMNIFICATION
9.1 Our Indemnification of You. Subject to the limitations set forth above in §8, we will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that your use of our Software Product or Hosted Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of such a claim against you, or for amounts paid by you under a settlement approved by us in writing of such a claim, provided you: 
 
  1. Promptly give us written notice of such a claim,
  2. Give us sole control of the defense and settlement of such a claim, except that we may not choose to settle any such claim unless it unconditionally releases you of all liability, and
  3. Give us all reasonable assistance, at our expense.
  If we receive information about an infringement or misappropriation claim related to our Software Product or Hosted Service, we may choose, in our discretion and at no cost to you, to: 
 
  1. Modify our Software Product or Hosted Service so that it no longer infringes or misappropriates, without breaching our warranties under §8.3 (Limited Warranties),
  2. Obtain a license to allow for your continued use of our Software Product or Hosted Service in accordance with this Agreement, or
  3. Terminate your use of our Software Product or Hosted Service upon 30 (thirty) days’ written notice and refund you any prepaid fees covering the remainder of the term.
  The above defense and indemnification obligations do not apply to the extent a claim against you arises from alleged infringement or misappropriation in Your Knowledge Base, any Other Application or your breach of this Agreement.
9.2 Your Indemnification of Us. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that Your Knowledge Base, or your use of our Hosted Service or Software Product in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law, and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of such a claim, or for any amounts paid by us under a settlement approved by You in writing, of such a claim against us, provided we: 
 
  1. Promptly give you written notice of such a claim against us,
  2. Give you sole control of the defense and settlement of such a claim against us, except that you may not settle any such claim against us unless it unconditionally releases us of all liability, and
  3. Give you all reasonable assistance in the defense of such a claim against us, at your expense.
9.3 Special Language. Further, each party agrees to indemnify, defend, and hold the other party harmless from any and all claims, demands, costs, liabilities, losses, expenses and damages (including reasonable attorneys’ fees and costs) arising out of the indemnifying party’s gross negligence, willful misconduct, or material breach of this Agreement.
9.4 Exclusive Remedy. This §9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this §9.
10.0 MUTUAL LIMITATION OF LIABILITY
10.1 Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 (MUTUAL INDEMNIFICATION), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT, INCLUDING ANY RENEWAL, PREDECESSOR OR SUCCESSOR AGREEMENTS, FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR HOSTED SERVICE).
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.0 RENEWALS AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date you first accept it and continues for one (1) year, unless terminated.
11.2 Renewal. We will send you an invoice for renewal at least 30 (thirty) days in advance of the expiration date of this Agreement, at the then-prevailing price for the licenses and services then being provided to you unless We provide our intent to not renew the Agreement, such notice to be at least 45 (forty-five) days prior to the expiration date. The Agreement will renew for another term of the same length upon your payment of the renewal invoice. If your payment is late, the Agreement will be renewed retroactively as of the date of expiration and all of its provisions shall be deemed to have been in effect continuously since that time. License renewals per license and service prices will be the same as that of the immediately prior term unless we notify you in writing of a price increase, which we will do at least 90 (ninety) days before expiration. Such price increases will not exceed 5% (five percent) per year since the last price increase or start of service, whichever is later, unless the previous pricing was designated as special or one-time pricing.
11.3 Increases and Decreases. You may purchase additional licenses or services at any time, and the additional costs associated with these purchases will be based on current pricing, prorated to the end of your current contract term. Decreases in service or the number of licenses must be made at the end of your current term, and any renewal for a decrease in licenses will be based on current pricing without regard to prior per-license pricing.
11.4 Termination. A party may terminate this Agreement for cause, as:
 
  1. Upon 30 (thirty) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or
  2. If the other party becomes the subject of a bankruptcy petition or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or
  3. Terminated by Customer as a result of purchasing On-Premise licenses, or
  4. By Customer as a result of selecting the thirty (30) day satisfaction guarantee, as described in §8.2, or
11.5 Refund or Payment upon Termination. If this Agreement is terminated by you in accordance with §11.4 (Termination), we will refund you any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by us in accordance with §11.4, you will pay any unpaid fees for service up through the termination date. Unless you are entitled to a complete refund under the Money Back Satisfaction Guarantee as described in §8.2, termination will not relieve you of your obligation to pay any fees due us for the period prior to the effective date of termination.
11.6 Data Portability and Deletion. Upon your request, your complete Data may be exported by you at any time while this Agreement is in effect. Upon a written request by you made within 60 (sixty) days after the effective date of termination or expiration of this Agreement, we will make Your Data available to you for export or download as provided in the Documentation. After that 60-day period, we will have no obligation to maintain or provide Your Data, and will delete or destroy all copies of Your Data in our systems or otherwise in our possession or control as provided in the Documentation, unless prohibited by applicable law from doing so.
11.7 Surviving Provisions. The sections titled “Fees and Payment”, “Proprietary Rights and Licenses”, “Confidentiality”, “Warranties, Exclusive Remedies and Disclaimers”, “Mutual Indemnification”, “Mutual Limitation of Liability”, “Renewals and Termination”, “Data Portability and Deletion”, “Governing Law and Exclusive Jurisdiction”, and “General Provisions” will survive any termination or expiration of this Agreement.
12.0 GOVERNING LAW AND EXCLUSIVE JURISDICTION
12.1 Manner of Giving Notice. All notices, permissions and approvals given under this Agreement shall be in writing and shall be deemed to have been provided upon: 
 
  1. Personal delivery,
  2. The second business day after first class mailing,
  3. One day after receipt of an email sent to the email address of notice, or
  4. One week after international express mailing.
  All notices to us shall be addressed to Accounts Payable, Zeal Global Inc., 500 Westover Drive, #12194 Sanford, NC 27330 or legal@zealdocs.com. Billing-related notices to you shall be addressed to the relevant billing contact or email address designated by you. All other notices to you shall be addressed to the Hosted Service system administrator designated by you.
12.2 Consent to Governing Law and Exclusive Jurisdiction. Each party agrees to the applicable governing law of the following jurisdictions, without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of their courts as follows:
 
  1. Each Party agrees to participate, in good faith, in informal and confidential dispute resolution prior to bringing any claim against the other in a court of competent jurisdiction.
  2. This Agreement shall be governed by the laws of the State of California, and adjudicated in the state courts located in San Mateo County, California, or if required by law, the federal courts of the Northern District of California.
13.0 GENERAL PROVISIONS
13.1 Entire Agreement. This Agreement is the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. 
13.2 Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Quote and (3) the Documentation.
13.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld.
13.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.5 Prevailing Party. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover all costs and reasonable attorney’s fees.
13.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.8 No Legal Advice. Zeal is not a law firm and Zeal does not provide legal advice. Part of the Services provided by Zeal may involve the making of contracts, and/or other legal relations and although Zeal attempts to make sure our information is accurate and useful, Zeal recommends that Customer consults with a lawyer if legal advice is required. Zeal does not offer any legal advice, legal opinions, recommendations, referrals, and/or counseling. Zeal is not involved in agreements between Customer and other users or recipients.
13.9 Electronic Communication: By using the Hosted Services, Customer agrees to receive certain communications in connection with the Services. The communications between Customer and Zeal use electronic means, whether Customer uses the Services or sends Zeal emails, or whether Zeal posts notices on the Services or communications with Customer via email. For contractual purposes, Customer (i) consents to receive communications from Zeal in an electronic form; and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Zeal provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be a hardcopy in writing. The foregoing does not affect Customer’s non-waivable rights.
14.0 MISCELLANEOUS
14.1 Publicity. Customer grants Zeal the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Zeal’s websites and in other public or private communications with existing or potential Zeal customers, subject to Customer’s standard trademark usage guidelines as provided to Zeal from time-to-time. 

 

END OF AGREEMENT