THIS AGREEMENT GOVERNS YOUR USE OF THE ZECK, INC. (“ZECK”) SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” IN THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE HOSTED SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT ZECK’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROVISIONS SET FORTH BELOW.
This Agreement was last updated on August 5th, 2024 (the “Agreement”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Zeck Solution.
1.2 “Authorized User” means each of Customer’s employees, agents, board members and independent contractors who are authorized to access the Zeck Solution pursuant to Customer’s rights under this Agreement.
1.3 “Zeck Module” shall mean features and functions of a specific module of the Zeck Solution ordered by Customer through an Order Form.
1.4 “Zeck Solution” means the Zeck communication and management platform that allows Authorized Users to access certain features and functions through a web interface.
1.5 “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
1.6 “Documentation” means the technical materials provided by Zeck to Customer in hard copy or electronic form describing the use and operation of the Zeck Solution.
1.7 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.8 “Order Form” means an order form that is signed by both parties and references this Agreement and specifies the Zeck Modules to be made available to Customer as part of the Zeck Solution and the applicable Fees.
1.9 “Services” means provision of access to the Zeck Solution.
2. PROVISION OF SERVICES
2.1 Access. Subject to Customer’s payment of the fees set forth in the Order Form as adjusted as provided for in Section 5.2 (“Fees”) and compliance with the terms of this Agreement, Zeck will provide Customer and its Authorized Users with access to the Zeck Solution. On or as soon as reasonably practicable after the Effective Date Zeck will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Zeck Solution in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Zeck Solution, and notify Zeck promptly of any such unauthorized use known to Customer.
2.2 Use Guidelines and Restrictions. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party (other than Authorized Users) except as contemplated by this Agreement; (b) send via or store within the Service any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via, upload to, or store within the Service any malicious code; (d) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (e) attempt to gain unauthorized access to the Zeck Solution or its related systems or networks; (f) interfere in any manner with the operation of the Zeck Solution or the hardware and network used to operate the Zeck Solution; or (g) access or use the Zeck Solution to build a similar or competitive product or service; (h) attempt to access the Zeck Solution through any unapproved interface. In no event shall Customer decompile, disassemble, decode, reproduce, redesign, or reverse engineer the Zeck Solution or its component parts or otherwise decrypt encrypted information provided pursuant to the provision of Services. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Zeck or its licensors on the Documentation or any copies thereof.
2.3 Support Services. Subject to the terms and conditions of this Agreement, Zeck will exercise commercially reasonable efforts to (a) provide support for the use of the Zeck Solution to Customer and its Authorized Users, and (b) keep the Zeck Solution operational and available to Customer, in each case in accordance with its standard policies and procedures.
2.4 Hosting. Zeck will, at its own expense, provide for the hosting of the Zeck Solution, provided that nothing herein will be construed to require Zeck to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Zeck Solution from the Internet.
2.5 Customer Requirements. Accessing the Zeck Solution requires Customer to use certain hardware and software satisfying the requirements set forth in the Documentation (e.g., type of browser and version). Customer is solely responsible for ensuring that all of its devices and software meet these requirements. Zeck may update the Documentation and these requirements from time to time in its sole discretion to account for new technologies, new features of the Services, or for any other reason related to the proper functioning of the Services, and Zeck will use commercially reasonable efforts to notify Customer of material updates to these requirements.
3. CUSTOMER CONTENT
3.1 Customer Content. As between Zeck and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Content. All rights in and to the Customer Content not expressly granted to Zeck in this Agreement are reserved by Customer. Customer grants Zeck a worldwide, limited-term license to host, copy, transmit and display Customer Content for use by Customer and its Authorized Users with the Services, as reasonably necessary for Zeck to provide the Services in accordance with this Agreement. This license ends one year after Customer deletes the Customer Content or this Agreement expires or is terminated, except to the extent that the Customer Content has been shared with others and they have not deleted it.
3.2 Co-Authoring. One feature of the Zeck Solution is the ability to share a presentation, board materials or other Customer Content with another Authorized User in a manner that allows the Authorized User to edit that Customer Content, or portions thereof, as permitted by the Zeck Solution. Once shared, that Authorized User has access to the Customer Content until Customer (or the Authorized User who granted such access) removes such access. Zeck is not responsible for the actions of the Authorized Users.
3.3 Sharing. Customer controls the access to the Customer Content. Presentations, board decks and other Customer Content will only be available to the Authorized Users that Customer authorizes to have access to the Customer Content. Customer may invite one or more people (a “Viewer”) to view the designated Customer Content by sending them a “share” or “invite” link. Customer authorizes Zeck to share the designated Customer Content with such Viewers. Zeck is not responsible for what a Viewer may do with such Customer Content.
3.4 Responsibility for Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Zeck to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Zeck to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement.
3.5 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Zeck’s system or data; and (e) otherwise violate the rights of a third party. Zeck is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Zeck Solution contrary to or in violation of the representations and warranties of Customer in this Section 3.5 constitutes unauthorized and improper use of the Zeck Solution.
3.6 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Zeck Solution. Customer will have the ability to export Customer Content out of the Zeck Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
3.7 Third Party Content. Zeck may enable Customer to insert third-party content into Customer Content. Such third-party content is subject to the license terms and contractual provisions that accompany it, and Customer is solely responsible for compliance with all such terms and provisions. For example, if Customer uses an image that is licensed pursuant to a Creative Commons license that prohibits commercial use, Customer may not use the image for commercial purposes.
3.8 Privacy of Customer Content. Zeck will not view or access any Customer Content, except: (a) as required to provide the Services or as otherwise necessary for purposes of evaluating and responding to security incidents and legal requests, (b) as authorized or instructed by Customer or an Authorized User (e.g. for support), (c) as required to comply with applicable law or governmental request, or (d) as necessary to conduct research and development for the further development of our Services.
3.9 Usage Data. Zeck shall have the right to collect and analyze usage information and data relating to the use and performance of the Zeck Solution and Zeck will be free to (i) use such information and data to improve and enhance the Zeck Solution and Services and for other development, diagnostic and corrective purposes in connection with the Services and other Zeck offerings, and (ii) disclose such usage data solely in aggregate and de-identified form in connection with its business. Zeck will not disclose any Customer Content to a third party (other than Viewers authorized by Customer or its Authorized Users) or otherwise provide any Customer-only statistics to third parties without Customer’s consent, which may be withheld in Customer’s sole discretion.
4. ZECK SOLUTION
4.1 Ownership. The Zeck Solution and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Zeck and its suppliers. All rights in and to the Zeck Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Zeck and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Zeck Solution, Documentation, or any part thereof.
4.2 Open Source Software. Certain items of software may be provided to Customer with the Zeck Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 4.1 or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Zeck makes such Open Source Software, and Zeck’s modifications to that Open Source Software, available by written request at the notice address specified below.
4.3 Feedback. Customer hereby grants to Zeck a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Zeck will not identify Customer as the source of any such feedback.
5. FEES AND EXPENSES; PAYMENTS
5.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Zeck under this Agreement, Customer will pay to Zeck the Fees. Except as otherwise provided in the Order Form, all Fees are due and payable annually in advance. Zeck reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term. Zeck reserves the right (in addition to any other rights or remedies Zeck may have) to discontinue the Zeck Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5.2 Increase in Fees. The Fees shall automatically increase after the first year by five percent (5%) per year from the prior year’s Fees.
5.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Zeck’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the provision of the Services, or the license of the Zeck Solution to Customer. Customer will make all payments of Fees to Zeck free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Zeck will be Customer’s sole responsibility, and Customer will provide Zeck with official receipts issued by the appropriate taxing authority, or such other evidence as Zeck may reasonably request, to establish that such taxes have been paid.
5.4 Interest. Any amounts not paid when due will bear interest at the rate of one percent (1%) per month, or the maximum legal rate if less, from the due date until paid.
6. CUSTOMER RESPONSIBILITIES. Customer is responsible for all activities that occur in Customer’s account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content; (b) prevent unauthorized access to, or use of, the Service, and notify Zeck promptly of any such unauthorized access or use; (c) comply with all applicable local, state, federal and foreign laws in using the Service; and (d) ensure that Customer’s use of all functions of the Service complies with Customer’s own governing documents including, but not limited to, Customer’s bylaws, policies, articles of incorporation, articles of organization, employee handbook, operating agreement, and any other documents or agreements relating to the Customer’s governance and ability to take actions as an entity.
7. PROFESSIONAL SERVICES. Where the parties have agreed to Zeck’s provision of professional services, the details of such professional services will be set out in an Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the professional services; (b) the schedule for the performance of the professional services; (c) the fees applicable for the performance of the professional services; and (d) any supplemental terms regarding the professional services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
8. WARRANTIES AND DISCLAIMERS
8.1 Limited Warranty. Zeck represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Zeck in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Zeck will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Zeck’s option, refund the Fees paid by Customer for the Services which gave rise to the breach. Zeck further warrants to Customer that the Zeck Solution will operate in material conformance with the Documentation provided by Zeck (as may be updated by Zeck from time-to-time), provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Zeck Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Zeck Solution in combination with other products, equipment, software or data not supplied by Zeck; or (c) any modification of the Zeck Solution by any person other than Zeck or its authorized agents. Provided that Customer notifies Zeck in writing of any breach of the foregoing warranty during the Term, Zeck will, as Customer’s sole and exclusive remedy, provide the support described in Section 2.3.
8.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” AND ZECK MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. ZECK DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE ZECK SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
9. LIMITATION OF LIABILITY
9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO ZECK DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL ZECK’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10. CONFIDENTIALITY
10.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Zeck.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Zeck). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
11. INDEMNIFICATION
11.1 By Zeck. Zeck will defend at its expense any third party suit brought against Customer, and will pay any settlement Zeck makes or approves, or any damages finally awarded in such third party suit, insofar as such suit is based on a claim by any third party alleging that the Zeck Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Zeck Solution becomes, or in Zeck’s opinion is likely to become, the subject of a claim of infringement, Zeck may, at Zeck’s option: (a) procure for Customer the right to continue using the Zeck Solution; (b) replace the Zeck Solution with non-infringing software or services which do not materially impair the functionality of the Zeck Solution; (c) modify the Zeck Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Zeck Solution and Documentation. Notwithstanding the foregoing, Zeck will have no obligation under this Section 11.1 or otherwise with respect to any infringement claim based upon (i) any use of the Zeck Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Zeck Solution in combination with other products, equipment, software or data not supplied by Zeck; or (iii) any modification of the Zeck Solution by any person other than Zeck or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 11.1 states the sole and exclusive remedy of Customer and the entire liability of Zeck, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
11.2 By Customer. Customer will defend at its expense any third party suit brought against Zeck, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 3.5. This Section 11.2 states the sole and exclusive remedy of Zeck and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
11.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12. TERM AND TERMINATION
12.1 Term. This Agreement will begin on the effective date of the Order Form and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term.
12.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 10; and (c) any amounts owed to Zeck under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 3.5, 3.9, 4, 8, 9, 10, 12.5, and 13 will survive expiration or termination of this Agreement for any reason.
12.4 Right to Suspend. Zeck will have the right to suspend Customer’s access to the Zeck Solution (or a Viewers right to view Customer Content), in the event that: (a) Zeck receives a complaint that the Customer Content infringes a third party’s rights or is otherwise unlawful; (b) Zeck has a reason to believe that Customer or an Authorized User is in violation of Sections 2.2, 3.5 or 6. Zeck will promptly notify Customer of the suspension and work with Customer to resolve the issue to reinstate the Service as soon as possible.
12.5 Data Extraction. For sixty (60) days after notification of intent to delete data, as applicable, Zeck will make Customer Content available to Customer through the Zeck Solution on a limited basis solely for purposes of Customer retrieving Customer Content, unless Zeck is instructed by Customer to delete such data before that period expires. After such period, Zeck retains the right to destroy all copies of Customer Content in its possession.
13. MISCELLANEOUS
13.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware for any lawsuit filed there against Customer by Zeck arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Zeck, or any products utilizing such data, in violation of the United States export laws or regulations.
13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Customer Content and Documentation.
13.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.8 Independent Contractors. Customer’s relationship to Zeck is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Zeck.
13.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Zeck, by emailing terms@zeck.app and if to Customer by emailing the Customer Point of Contact email address listed on the Order Form (or otherwise provided to Zeck), provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
13.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
13.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. This Agreement also supersedes any previously executed NDAs between the Parties. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Zeck.
Last Updated on August 5, 2024