Z2Data Terms & Conditions
THIS AGREEMENT AND ALL POLICIES, GUIDELINES, AND DOCUMENTS REFERENCED AND INCORPORATED HEREIN (“AGREEMENT”) ARE COLLECTIVELY THE TERMS AND CONDITIONS OF USE OF THE Z2DATA LLC WEBSITE, PLATFORM, CONTENT, LICENSED CONTENT, AND ALL RELATED PRODUCTS AND SERVICES (“Z2DATA SERVICES”). THIS AGREEMENT INCLUDES IMPORTANT LEGAL PROVISIONS THAT AFFECT YOU AND/OR YOUR ENTERPRISE’S RIGHTS AND OBLIGATIONS THAT MUST BE READ AND ACCEPTED.
BY USING THE Z2DATA SERVICES, USER AND/OR ENTERPRISE AND ALL ITS USERS AGREE TO BE BOUND BY THIS AGREEMENT AND ALL REVISIONS, UPDATES, AND/OR CHANGES THAT Z2DATA MAY PUBLISH FROM TIME TO TIME. EACH TIME USER AND/OR ENTERPRISE, OR ANY OF ITS USERS, ACCESS OR USE ANY OF Z2DATA SERVICES, ENTERPRISE AND USER REAFFIRM THIS AGREEMENT AND ANY REVISIONS, UPDATES, AND/OR CHANGES, AND ALL REPRESENTATIONS AND WARRANTIES AND COVENANTS.
IF ENTERPRISE, OR ANY USER, DOES NOT UNDERSTAND, ACCEPT, AND AGREE TO THE TERMS OF THIS AGREEMENT, THEN ENTERPRISE AND SUCH USER MUST NOT ACCESS NOR USE THE Z2DATA SERVICES.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, ENTERPRISE AND USER AGREE THAT DISPUTES BETWEEN USER, AND/OR ENTERPRISE, AND Z2DATA WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND USER AND ENTERPRISE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. Enterprise Terms and Conditions
1.1 Agreement Scope; Effective Date. The terms and conditions described below in this agreement and in all end user license agreements, terms of use, policies, schedules, exhibits, and/or other documents mentioned and incorporated herein (collectively, the “Agreement”) are a binding legal contract between the Enterprise and/or User (as defined below) that uses the Z2Data LLC Website, Account, Platform, Content, Licensed Content, and/or any related products or services (“Z2Data Services”) and Z2Data LLC, a Delaware limited liability company, with a principal place of business at 3080 Olcott St Suite A115 Santa Clara, CA USA 95054 (“Z2Data”). When User or Enterprise initiates access or use of the Z2Data Services, then User/Enterprise agrees to be bound by the terms and conditions of this Agreement as of that date (the “Effective Date”).
1.2 Changes and Amendments. User and/or Enterprise agree that Z2Data may at any time, in its sole discretion, amend or change this Agreement or any part of it, by posting on the Z2Data Website a revised version. Z2Data will provide reasonable advance notice of any amendment that includes a substantial change, by providing notice of such a substantial change on the Z2Data Website and/or sending Enterprise notice by email. If any change in the Z2Data Fees (as defined below) is a substantial and permanent increase, then Z2Data will provide at least thirty (30) days advance notice of the increase. Any revisions and/or modifications of this Agreement will take effect on the later of the date of posting or the noted effective date.
2. Definitions
Capitalized terms not defined below or above have the meanings set forth elsewhere in this Agreement.
2.1 “Account” means a login-accessed portion of the Z2Data Website that may allow access to the Z2Data Platform and/or other unique functionality, and to which account Enterprise and/or a User (as defined below) is granted access by (i) registering a unique username, password, and Profile (as defined below), (ii) agreeing to unique terms and conditions, and (iii) receiving an approval of registration from Z2Data.
2.2 “Content” means any and all data and/or information found on or within the Z2Data Services, including without limitation any links, files, messages, texts, graphics, data, data models, databases, spreadsheets, reports, designs, layouts, code, script, software, sound, music, audio, photographs, graphics, video, maps, etc.
2.3 “Enterprise” means any corporation, limited liability company, partnership, sole proprietorship, and/or other business entity that may provide its acceptance of the terms and conditions of this Agreement and be bound by them.
2.4 “Intellectual Property Rights” means all intellectual property and proprietary rights anywhere in the world under the laws of any state, country, territory, and/or other jurisdiction, as may now exist or hereafter come into existence, whether statutory, common law, or otherwise, including without limitation any and all patent rights (including patent applications and disclosures), copyright rights, trade secret rights, moral rights, know-how, database rights, mask work rights, rights of publicity, Marks (whether registered or unregistered), and all goodwill relating to the foregoing and any and all applications therefore and registrations, renewals, and extensions thereof. “Mark” means any trademark, trade name, trade dress, service mark, corporate name, design, logo, device, domain name, and/or other indicator of the source or origin of any product or service
2.5 “Licensed Content” means such Content as Z2Data shall expressly agree in a mutually executed writing to license to Enterprise, and Enterprise shall agree to license from Z2Data, conditioned upon payment of the Z2Data Fees and/or other fees, and subject to the terms and conditions of this Agreement.
2.6 “Order Form” means Z2Data’s standard and/or approved order form , which document, when executed by both parties hereto, shall form a part of this Agreement and be subject to the terms hereof.
2.7 “Platform” means the proprietary platform and functionality of Z2Data accessed by registering and logging into an Account on the Z2Data Websites.
2.8 “Term” has the meaning set forth in Section 6.1 of this Agreement.
2.9 “User” means any user of the Z2Data Services, including without limitation Enterprise, Authorized Enterprise Users, and/or other third parties that use the Z2Data Websites and/or Z2Data Services.
2.10 “Website” means the websites collectively of Z2Data, including the homepage, which is typically found www.Z2Data.com, and such other websites maintained by Z2Data and its affiliates from time to time.
2.11 “Z2Data Fees” has the meaning set forth in Section 5 of this Agreement.
2.12 “Z2Data Services” has the meaning set forth in the preamble of this Agreement.
3. Account Registration
3.1 Registration. To use login-accessed portions of the Z2Data Website and to access and use the Z2Data Platform, Enterprise and/or User must register and obtain an Account, request activation of the Z2Data Platform, and be accepted and approved by Z2Data. At the time of Account creation, User, Enterprise and any Authorized Enterprise User (as defined below) must register a User profile (“Profile”), and Enterprise, Authorized Enterprise User, and/or Users must always provide accurate, truthful, and complete information and maintain and update such profile to ensure ongoing accuracy, completeness, and truthfulness. User agrees not to provide any false or misleading information about its identity, business, employer, physical location, email address, contact information, and/or any other information, to correct any such information that is, or becomes, false or misleading, and to respond promptly to any requests for verification of such information.
3.2 Authorized Use. Enterprise and/or User agree not to allow another User, person, entity, and/or organization to create, register, or use an Account on its behalf, for its benefit, or otherwise use such Account of Enterprise or User, except that, subject to the terms hereof, Enterprise and/or User may authorize an employee to create on its behalf login credentials and establish an Account and Profile (“Authorized Enterprise User”) and may authorize its employees to register Accounts and becomes Users of the Z2Data Services on behalf of, and for the benefit of, Enterprise and/or User. Enterprise and/or User shall not allow any other User or third party to access or use any of its Accounts or to use the Z2Data Services. Enterprise and/or User shall ensure that all such authorized Users and/or employees represent, warrant, and covenant as set forth in Section 3.4 below. Enterprise and/or User shall assume full responsibility for all activities of such Users and/or employees that accesses and/or use such Account or Accounts or use the Z2Data Services.
3.3 User Verification. Enterprise and/or User acknowledge and agree that all User and Account information, and any rights, privileges, and/or licenses Enterprise or any User claims, will be subject to verification at any time and from time to time, including without limitation against third-party databases or government and/or legal registrations or documents. Enterprise authorizes Z2Data and its agents to make inquiries and to investigate as necessary to validate Enterprise’s and all Users’ Account information and Profiles. Enterprise also agrees to provide evidence to verify any or all of the foregoing when requested by Z2Data, to the satisfaction of Z2Data in its sole discretion. Until such time, Z2Data may suspend any such User’s access to the Z2Data Services.
3.4 Authorized Users. Enterprise, Authorized Enterprise Users, and all of Enterprise’s Users hereby represent, warrant, and covenant that: (i) such User is an employee or agent of, or is properly authorized by, Enterprise in accordance with the terms hereof; (ii) Enterprise’s Users will use the Z2Data Services for only the business purposes of Enterprise only in accordance with all applicable laws, rules, and regulations; (iii) User will comply with any and all licensing, registration, regulatory, and/or other legal requirements with respect to its business, or the business for which it is acting, and with respect to the use of the Z2Data Services; and (iv) User is an individual who is eighteen (18) years or older (or has otherwise reached the age of majority in the jurisdiction in which User is located (but in no instance less than sixteen (16) years of age) in each case who can form legally binding contracts; and (v) User shall abide by and comply with this Agreement and all applicable user policies and guidelines; and (vi) User agrees not to share its or any other username or password (or other login credentials) with any person, except such person or persons who are authorized hereby to use the Z2Data Platform Account and meet the terms and conditions of this Section 3.4.
4. Z2Data Platform Access; Licensed Content
4.1 Platform Grant; License Grant. During the term of this Agreement, conditioned upon payment of the Z2Data Fees, conditioned upon compliance with this Section 4, and subject to the terms hereof, Z2Data grants to Enterprise (i) a limited, revocable, non-exclusive, non-transferrable, non-sublicensable right to access and use the Z2Data Platform by means of an Account established and registered by Enterprise and/or its Authorized Enterprise User in accordance with this Agreement; and (ii) a limited, revocable, non-exclusive, non-transferrable, non-sublicensable right and license to use the Licensed Content only for its internal purposes, and may only make a reasonable number of copies to achieve Enterprise’s internal purposes.
4.2 Misuse of Z2Data Services Prohibited. Except as expressly provided otherwise in this Agreement, Enterprise and its authorized Users may not, nor allow any third party to: (i) modify, disassemble, decompile or reverse engineer the Z2Data Services, nor any component thereof; (ii) copy the Z2Data Services (including any Content), nor any component thereof, nor make any derivative works thereof; (iii) use Z2Data Services (including any Content) to build a database for resale or for access by a third party in direct or indirect competition with the Z2Data Services; (iv) delete or in any manner alter the copyright, Mark, and other proprietary rights notices, if any, of Z2Data and its licensors and/or suppliers appearing on any Z2Data Services. User and/or Enterprise and its Users shall not (a) transfer, share access or use, sub-license, rent, lend, transmit, sell, re-circulate, repackage, assign, lease, resell, publish, copy, translate, convert, alter, enhance, disassemble, modify, change, host, outsource, disclose, and/or otherwise exploit any portion of the Z2Data Services (including any Content), or any element thereof; (b) create Internet "links" to the Z2Data Services or "frame" or "mirror" any part of the Z2Data Services (including any Content); (c) attempt to disable or circumvent any security mechanisms used by the Z2Data Services, or any applications running on the Z2Data Services; (d) engage in any activity that interferes with or disrupts the Z2Data Services (or the servers and networks connected to the Z2Data Services); (e) access the Z2Data Services in a manner intended to avoid incurring fees or exceeding usage limits or quotas; (f) access the Z2Data Services for the purpose of bringing an intellectual property infringement claim against Z2Data or for the purpose of creating a product or service competitive with the Z2Data Services; (g) use any linking, deep-linking, framing or page-scraping technology, robots, spiders or other automatic devices, programs, algorithms or methodologies, or any similar or equivalent manual processes, to access, acquire, copy, distribute, display or monitor any portion of the Z2Data Services (including any Content), or in any way reproduce or circumvent the navigational structure or presentation of the Z2Data Services, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Z2Data Services; (h) infringe or violate the copyright, patent, trademark, service mark, trade name, trade secret, or other Intellectual Property Rights of any third party or Z2Data, or any rights of publicity or privacy of any party; (i) introduce or utilize any viruses, Trojan horses, worms, malware, spyware, time bombs, and/or any other similar software, data, code, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; (j) violate any law, statute, ordinance, or regulation, including without limitation the laws and regulations governing export control, unfair competition, privacy, publicity, anti-discrimination, or false advertising; (k) interfere with or disrupt the use of Z2Data Services by any other user or reverse look-up, trace or seek to trace any information on any other user of or visitor to the Z2Data Services; (l) probe, scan, or test the vulnerability of the Z2Data Services or any network connected to them or attempt to gain unauthorized entry or access to the computer systems of any other user, person, or entity; (m) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Z2Data Service's systems or networks, or any systems or networks connected to them.
4.3 Suspension of Access and License. Without limiting its other remedies available hereunder or under law, if Enterprise (or User) fails to comply with the provisions of this Section 4, or fails to timely pay all fees due and owing hereunder (including under any Order Form or statement of work), then Z2Data may, but is not obligated to, immediately suspend the rights granted under Section 4.1. During any such suspension, and without limiting other remedies available to Z2Data, Z2Data shall be relieved of all of its obligations set forth in this Agreement until such time as Enterprise shall cure such incompliance and breach. During any such suspension, the Term of this Agreement shall not be tolled or paused, and the expiration not delayed.
4.4 Export Compliance. The Z2Data Services are subject to all applicable export control laws and regulations, including without limitation those of the United States government. Enterprise and all authorized Users of Enterprise agree not to directly or indirectly export, re-export, divert, release, provide access to, transfer or disclose the Z2Data Services, or any derivative thereof, to any prohibited or restricted destination, end-use, or end-users, or to anyone who requires a United States export license or other license, except in accordance with all relevant export control laws and regulations which may require it to obtain necessary licenses, approvals or permissions from the appropriate US governmental authority and all required foreign authorities prior to undertaking such activities.
4.5 License Termination. Following any termination, expiration, or cancellation of this Agreement or the rights and/or licenses granted herein: (i) subject to the provisions specified below, immediately upon Z2Data’s request, Enterprise and/or User will either destroy or send to Z2Data (at Enterprise’s expense) all copies of the Licensed Content; (ii) Enterprise’s and/or User’s rights to continue to use, or reproduce, the Licensed Content, and any and all other rights thereto, if any, shall immediately cease; and (iii) all of Z2Data’s obligations hereunder shall cease. So long as Enterprise has any copy of the Licensed Content, Enterprise shall continue to be bound by the terms hereof.
5. Z2Data Fees
5.1 Enterprise Fees. Enterprise and/or User shall pay annual, monthly, and/or quarterly fees as set forth in the Order Form, and such other fees as are set forth therein, or otherwise as set forth in Z2Data’s standard pricing guide, together with such other fees as Z2Data may specify from time to time (“Z2Data Fees”).
5.2 Payment Terms. Such Z2Data Fees shall be paid in full in accordance with the Order Form, otherwise within thirty (30) days of the end of the month or the date of the applicable invoice, whichever is earlier. Except as expressly set forth in this Agreement, the Z2Data Fees are non-refundable and non-cancelable, and Z2Data reserves the right to charge interest on such fees and other amounts due or payable hereunder that are not paid within fifteen (15) days of the earlier of when they were due or payable or when they were invoiced, at a rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, whichever is less, plus all expenses of collection.
5.3 Taxes. The Z2Data Fees, and any and all other fees and costs due and owing Z2Data, do not include any sales, use, excise, transaction and/or other similar or other taxes levied against or upon the rights of use or license or the furnishing or delivery or receipt of products and/or services pursuant to this Agreement, nor do they include any charges or fees imposed by a government, bank, or other. Enterprise and/or User shall be responsible for all such fees and charges and all such taxes associated with the payment for the Z2Data Fees, other than United States taxes based on Z2Data’s net income.
6. Term and Termination
6.1 Term. The term of this Agreement shall begin upon the Effective Date and continue for the period of time specified in such Order Form, unless earlier terminated in accordance with the terms of this Agreement (the “Term”).
6.2 Termination for Inactivity. Subject to the terms hereof and applicable law, if a User Account remains inactive for six (6) months, then Z2Data may suspend or terminate access to the Z2Data Services, deactivate or delete the Account, and delete all its Content and/or data, and/or may terminate this Agreement.
6.3 For Cause Termination or Response. Without limiting Z2Data’s other rights or remedies, Z2Data may, but is not obligated to, temporarily or indefinitely revoke or limit access to the Z2Data Services, deny any User registration, and/or permanently revoke any User access to the Z2Data Services if: (i) User breaches the letter or spirit of any terms and conditions of this Agreement; (ii) Z2Data suspects or becomes aware that User has provided false or misleading data or information to Z2Data in an Account or Profile; (iii) Z2Data believes, in its sole discretion, that User actions may cause legal liability for any other User and/or Z2Data and/or its affiliates; or may involve illicit or illegal activity; (iv) any User is acting without appropriate and/or necessary authorizations; and/or (v) Z2Data is required by law, legal process, or law enforcement. If any User’s Account is temporarily or permanently closed, User may not use the Z2Data Website, Z2Data Account, and/or Z2Data Services under the same Account or a different Account or re-register under a new Account without Z2Data’s prior written consent.
Except as otherwise required by law, if a User’s Account is closed for any reason, such User will no longer have access to Content, information, data, messages, files, and/or other material it keeps in the Z2Data Services. Any closure of a User’s Account and/or any Account associated with Enterprise may involve deletion of any and all Content stored in the Account for which Z2Data will have no liability whatsoever. Z2Data, in its sole discretion and as permitted or required by law, may retain some or all of the Account information.
6.4 Survival. After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. The termination of this Agreement for any reason will not release Enterprise or Z2Data from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
7. Intellectual Property Rights
Enterprise and User agree that Z2Data and its licensors and suppliers retain and own all rights, title, and interests in and to the following, and in and to all Intellectual Property Rights therein: (i) the Z2Data Website, Z2Data Accounts, Z2Data Platform, Z2Data Licensed Content, Z2Data Content, Z2Data Services, and any and all related products and services; (ii) the components and/or any and all other materials, data and/or information provided and/or made available by Z2Data in connection with any of the foregoing; and (iii) any and all configurations, derivative works, developments, modifications, adaptations, changes, alterations, edits, conversions, improvements and/or the like made to, arising out of, and/or resulting from any of the foregoing, and (iv) the Website and Platform, including all Content, models, software, information, data, documentation, computer programs, systems, customizations, enhancements thereto, and the design, structure, selection, coordination, expression "look and feel" and arrangement of the Content, and enhancements, modifications or additional Content thereto. Enterprise and/or User acquires absolutely no rights or licenses in or to the Z2Data Services, nor to any Content or Licensed Content, other than the limited rights expressly set forth in Section 4.1 of this Agreement. All rights not expressly granted under this Agreement, are reserved to Z2Data and its licensors and suppliers, and there are no implied rights. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel, or otherwise, a right or license to any party’s data, information, intellectual property, or proprietary technology other than in strict accordance with the terms of this Agreement.
Enterprise and User irrevocably agree and acknowledge that, as between Enterprise and/or User and Z2Data, the Content and Licensed Content are the sole and exclusive property of Z2Data and shall not be considered works for hire. The Z2Data Services, Content, and Licensed Content are protected as a collective work or compilation under UK copyright, U.S. copyright and other laws and treaties. All data, information, reports, and other elements making up the Content and/or Licensed Content are copyrighted works and Z2Data hereby reserves all rights. The Intellectual Property Rights in and to all of the foregoing, including all Content, Licensed Content, models, software, information, data, documentation, computer programs, systems, customizations, enhancements thereto, and the design, structure, selection, coordination, expression "look and feel" and arrangement of the Content and/or Licensed Content, and enhancements, modifications or additional Content and/or Licensed Content thereto shall be the sole and exclusive property of Z2Data and its licensors and providers.
Enterprise and User shall honor and comply with all reasonable written requests made by Z2Data to protect its contractual, statutory, and common law rights therein. Enterprise and User agree to notify Z2Data in writing promptly upon becoming aware of any unauthorized use of this the Licensed Content or Content or Z2Data Services or any claim that any or all of the Content, Licensed Content, and/or Z2Data Services infringes upon or constitutes any unlawful use of any copyright, database right, trademark, or other proprietary, intellectual property, contractual, statutory, or common law rights of a third party.
8. Feedback
Enterprise, its authorized Users, and/or all other Users acknowledge and agree that Z2Data and its licensors, suppliers, vendors and/or its third party vendors shall own all right, title and interest in and to (and all Intellectual Property Rights therein) any suggestions, enhancements, requests, feedback, and/or recommendations provided by Enterprise, Authorized Enterprises Users, and/or any and all other Users relating to the Z2Data Services without any limitation and restrictions thereon nor requirement of compensation related thereto, including without limitation all unpatented inventions, patent applications, patents, design rights, copyrights, Marks, know-how and other trade secret rights, and all other Intellectual Property Rights, derivatives or improvements thereof.
9. Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Z2DATA SERVICES (INCLUDING ALL CONTENT AND LICENSED CONTENT) AND ALL OTHER SERVICES AND/OR PRODUCTS RELATED THERETO AND/OR MADE AVAILABLE TO ENTERPRISE AND/OR ANY USERS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND Z2DATA AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, GUARANTEES, PROMISES, AND/OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE IN TRADE, WARRANTIES ARISING OUT OF OR RELATING TO TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR CONTENT AND/OR DATA ACCURACY OR SUITABILITY OR QUALITY OR RELIABILITY (Z2DATA DOES NOT PERFORM AN AUDIT NOR UNDERTAKE DUE DILIGENCE OR INDEPENDENT VERIFICATION OF ANY CONTENT IT RECEIVES). Z2DATA, ON BEHALF OF ITSELF AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS, DOES NOT WARRANT THAT THE Z2DATA SERVICES (INCLUDING CONTENT OR LICENSED CONTENT) AND/OR ANY OR ALL OTHER SERVICES AND/OR PRODUCTS MADE AVAILABLE TO ENTERPRISE AND/OR USERS WILL MEET THEIR REQUIREMENTS OR EXPECTATIONS, THAT THE OPERATION AND/OR USE OF THE FOREGOING WILL BE UNINTERRUPTED AND/OR ERROR-FREE, ACCURATE, IMPERVIOUS TO HACKING OR UNAUTHORIZED INTRUSTION, OR THAT ANY ERRORS WILL BE CORRECTED.
ENTERPRISE AND ALL USERS ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT, ABSENT SUCH DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS, THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT.
10. Limitation of Liability
User and/or Enterprise and all its Users agree that Z2Data shall not be liable for any damages or losses arising out of or in connection with the Z2Data Services (including any Content and/or Licensed Content), including, but not limited to: (i) inability to use them; (ii) delays or disruptions relating thereto; (iii) viruses or other malicious software obtained by accessing, or linking thereto; (iv) glitches, bugs, errors, or inaccuracies of any kind in them; (v) damage to User’s and/or Enterprise’s and/or it authorized User’s hardware devices arising from the use thereof; (vi) the actions or inactions of third parties’ related to the access and/or use of them, or unauthorized access thereto; (vi) a suspension or other action taken with respect to the Accounts of User and/or Enterprise or its Users; (vii) User and/or Enterprise’s and/or its Users reliance on the quality, accuracy, or reliability of data, postings, profiles, ratings, recommendations, and feedback used on, or made available through the Z2Data Services; and (viii) Enterprise or its Users need to modify practices, content, or behavior or its loss of or inability to do business, as a result of changes to the terms of service.
ADDITIONALLY, IN NO EVENT WILL Z2DATA, ITS AFFILIATES, ITS LICENSORS, SUPPLIERS, NOR ITS THIRD-PARTY PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, LOSS OF DATA, HARMFULNESS OF DATA, UNSUITABILITY OF DATA, UNAUTHORIZED ACCESS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF Z2DATA, ITS AFFILIATES, ITS SUPPLIERS, ITS LICENSORS, AND ITS THIRD-PARTY PROVIDERS TO ENTERPRISE AND/OR ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE Z2DATA SERVICES (INCLUDING THE CONTENT AND/OR THE LICENSED CONTENT) WILL NOT EXCEED THE TOTAL AMOUNT OF ANNUAL FEES PAID BY ENTERPRISE TO Z2DATA. THESE LIMITATIONS WILL APPLY TO ANY AND ALL LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT OR RELATIONSHIP BETWEEN THE PARTIES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
11. Indemnifications
User and/or Enterprise will hold harmless, defend, and indemnify Z2Data, its affiliates, and their respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) against all damages, liabilities, costs, losses, and/or expenses (including reasonable attorneys’ fees and all related costs and expenses, and including costs and expenses related to securing insurance coverage) arising out of or related to any claim, suit, proceeding, allegation, demand, investigation, and/or action brought by Enterprise, any User, and/or any third party relating to or arising out of (i) the representations, warranties, and covenants contained in this Agreement, including without limitation in Section 4; (ii) the use of the Z2Data Services (including the Content, and/or Licensed Content), by User and/or Enterprise and/or its Users and/or agents; (iii) any Enterprise and/or User-supplied information, data, and/or content developed, provided, posted, published, and/or otherwise related to use of the Z2Data Services; (iv) failure to comply with this Agreement and/or any related agreements, terms of service, guidelines, and/or usage policies by Enterprise and/or Users; (v) failure to comply with applicable law by Enterprise and/or Users; (vi) negligence, willful misconduct, or fraud by Enterprise and/or Users; and (vii) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by Enterprise and/or Users.
12. Choice of Law
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Except for small claims disputes in which Enterprise and/or User or Z2Data seeks to bring an individual action in small claims court located in the county of User’s and/or Enterprise’s billing address or claims for injunctive relief by either party, any dispute or controversy arising out of, in relation to, or in connection with this Agreement or User’s or Enterprise’s use of the Z2Data Services shall be finally settled by binding arbitration in Santa Clara County, California under the Federal Arbitration Act (9 U.S.C. §§ 1-307) and the then-current rules of JAMS (formerly known as Judicial Arbitration & Mediation Services) by one (1) arbitrator appointed in accordance with such rules. Where arbitration is not required by these terms, the exclusive jurisdiction and venue of any action with respect to the subject matter of these terms will be the state and federal courts located in Santa Clara County, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ATION, AND USER AND/OR ENTERPRISE EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THIS AGREEMENT.
Except as required by the mandatory arbitration provisions hereof, Enterprise agrees that the California state courts of Santa Clara County (or, if there is federal jurisdiction, the United States District Court for the Northern District of California) will have jurisdiction and venue with respect to any claim arising out of or relating to this Agreement and consents to the personal jurisdiction and venue of those courts.
13. Confidential Information
13.1 Definition. “Confidential Information” means any information in any form related to this Agreement and its purposes disclosed by a party (the “Discloser”), or disclosed on behalf of such party by its affiliates or representatives, to the other party (the “Recipient”), including without limitation any trade secrets, technology, technical data, source code, object code, software, inventions, know-how, information that Discloser considers and treats as confidential, or that a reasonable person would believe is confidential based on the nature of the information. Confidential Information does not include information that (i) at the time of disclosure, is available to the general public, (ii) becomes available to the general public through no fault of Recipient, (iii) is received by Recipient at any time from a third party without breach of a non-disclosure or confidentiality obligation to Discloser, (iv) is known to Recipient at the time of disclosure, as demonstrated by documentary evidence, (v) is developed independently by Recipient without access to any of Discloser’s Confidential Information, or (vi) is approved for disclosure by prior written permission of Disclosure or a corporate officer of Discloser, including without limitation pursuant to the terms of this Agreement.
13.2 Restrictions. Recipient shall use Discloser’s Confidential Information only for the purposes of this Agreement (the “Purpose”). Except as permitted in this Agreement, Recipient shall not disclose to any third party any of Discloser’s Confidential Information that is obtained directly or indirectly from Discloser or its affiliates or representatives. Recipient may only disclose the Confidential Information of Discloser to its employees or representatives who are required to have it to further the Purpose. Recipient must inform any such employee or representative of the confidential nature of the information and cause the employee or representative to comply with the terms of this Agreement as if it were the Recipient, and Recipient will be liable for any breach of this Agreement by any such employee or representative. Recipient will exercise the same degree of care toward the Confidential Information as Recipient exercises toward its own confidential information, but not less than reasonable care. Recipient agrees to take all reasonable steps to protect the secrecy of, and avoid disclosure or use of, the Discloser’s Confidential Information in order to prevent it from falling into the public domain or possession of unauthorized persons. Recipient agrees to immediately notify Discloser in writing of any use and/or disclosure in violation of this Agreement. Each party, however, may disclose Confidential Information of the other pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement. Recipient agrees and acknowledges that any such breach or threatened breach of these terms of confidentiality may cause irreparable injury to Discloser so that, in addition to any other remedies available, Discloser may seek injunctive relief against the threatened or actual breach.
14. Service Commitment
Z2Data will use commercially reasonable efforts to ensure the accessibility of the Z2Data Website, Accounts, and Platform and to ensure that updates to the foregoing shall not degrade their functionality, capabilities, or features and that any such updates shall be backward compatible with the data structures, databases, and system architecture employed with previous versions. Z2Data will, to the extent practicable, give User and/or Enterprise advance notice prior to initiating an unplanned maintenance operation, and such notice shall indicate the estimated timing of such unplanned maintenance operation.
15. General Provisions
15.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between Enterprise and/or User and Z2Data relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between Enterprise and/or User and Z2Data, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings are included for ease of reference only and have no binding effect.
15.2 Modifications, Waiver. No modification or amendment to this Agreement will be binding upon Z2Data unless they are agreed in a written instrument signed by a duly authorized representative of Z2Data or posted on the Z2Data Website. Z2Data’s failure to act with respect to a breach by Enterprise, Authorized Enterprise User or others does not waive Z2Data’s right to act with respect to subsequent or similar breaches. Z2Data does not guarantee it will take action against all breaches of this Agreement.
15.3 Assignability. Enterprise may not assign this Agreements, or any of its rights or obligations hereunder, without Z2Data’s prior written consent in the form of a written instrument signed by a duly authorized representative of Z2Data. Z2Data may freely assign this Agreement without Enterprise’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the terms and conditions of this Agreement are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
15.4 Severability; Interpretation. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
15.5 Force Majeure. Excluding the payment of fees due and owing hereunder, the parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to pandemics, disease, labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
15.6 Language. The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Z2Data Services are controlled and operated from Z2Data’s facilities in the United States.
15.7 Non-US Website Access. Z2Data makes no representations that the Z2Data Services are appropriate or available for use outside of the United States. Those who access or use the Z2Data Services from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. User must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service or content to any end user without obtaining any and all required authorizations from the appropriate government authorities. User also warrants that it is not prohibited from receiving US origin products, including services or software or content. In order to access or use the Z2Data Services, User must and hereby represents that it is not: (i) a citizen or resident of a geographic area in which access to or use of the Z2Data Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (ii) a citizen or resident of, or located in, a geographic area that is subject to US or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the US Department of Commerce Denied Persons or Entity List, the US Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the US Department of State Debarred Parties List or otherwise ineligible to receive items subject to US export control laws and regulations or other economic sanction rules of any sovereign nation. User agrees that if its country of residence or other circumstances change such that the above representations are no longer accurate, that User will immediately cease using the Z2Data Services and its license to use the Z2Data Services will be immediately revoked.
15.8 Electronic Records. In connection with this Agreement, User and/or Enterprise may be entitled to receive, or Z2Data may otherwise provide, certain records from Z2Data or its Affiliates, such as contracts, notices, and communications, in writing. To facilitate User’s use of the Z2Data Services, User gives permission to provide these records to User electronically instead of in paper form.
15.9 Audit. User and/or Enterprise agree that, on Z2Data’s request, it will certify in writing its compliance with the terms of this Agreement.