Terms Of Service
READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE ZENI SERVICE
These Terms of Service (the “Agreement”) are entered into by and between Zeni Inc. (“Zeni”, “we”, “us” or “our”), and you and your Affiliates (“Customer”, “you” or “your”). “Affiliate” means any company that controls, is controlled by, or is under common control with a party, directly or indirectly, with control meaning an ownership interest of at least 20%. This Agreement states the terms and conditions that govern your access to and use of the Zeni Website (“Site”), the Zeni mobile application (“App”), and the Zeni bookkeeping and accounting services, and web-based software services, services offered via communications with Zeni over email, managed services, functionality, and content (together with the Site and the App, referred to collectively as the “Zeni Services”), a detailed description of which is available in the “Description of Products & Services” available at www.zeni.ai.
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH ZENI.
Acceptance and Modification of Terms of Service
By (1) checking a box indicating your acceptance, (2) ordering, (3) onboarding and signup, or (4) accessing or using the Zeni Services, you agree to be bound by this Agreement and all other policies, procedures, and rules that we may publish, as well as any additional terms and conditions which we and you may agree to in writing on a valid Order Form.
We may refuse to offer the Zeni Services to any entity, and use of the Zeni Services is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service. If you do not agree with the Terms of Service, or you are not legally able to enter into a contract, you are not authorized to use the Zeni Services. If you are accessing and using the Zeni Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these terms. In that case, “you”, “your” and “Customer” will refer to that company or other legal entity.
Zeni may make modifications, deletions and/or additions to this Agreement at any time (“Changes”). Changes will be effective: (i) thirty (30) days after Zeni provides notice of the Changes, whether such notice is provided through the Service user interface, is sent to the email address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. If any term of this Agreement becomes invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
Registration
You will need to register and create an account with Zeni to access the Zeni Services. You will need to create a username, password and provide certain information as prompted by the registration form, including your name and a valid email address. You agree to provide full, complete and accurate information when registering or creating an account, and to update that information promptly if it should change. You are responsible for verifying the accuracy of any information that you use from the Zeni Services for your legal, tax and compliance obligations. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of this Agreement. You are responsible for ensuring each authorized user is informed and accepts this Agreement. You may not create more than one account without prior written approval from us. You will not transfer your account to any other party without our prior written consent. You agree that the username and password for each authorized user is Zeni’s Confidential Information; you agree not to disclose or transfer your username or password to any third-party. You are responsible for any use of your account, whether authorized or not. You agree to immediately notify Zeni if there is any unauthorized use of your account.
Zeni Services
We bundle finance functions, including bookkeeping, accounting, bill pay and invoicing and financial reporting, into a single platform. The Zeni Services are not a substitute for and do not include legal, tax, human resources, real estate, healthcare, investment or financial advice. For more about what the Services do and do not include, and how you can use them, please visit our website at http://zeni.ai
A Customer can subscribe to the Zeni Services by contacting Zeni and entering an Order form (“Order” or “Order Form”) that specifies the particular features and services to be provided. No Order or Order Form is binding unless accepted in writing by a duly authorized representative of Zeni. The Zeni Services can be subscribed to on a monthly, quarterly and annual basis. In the event of a conflict between the Order and the Agreement, the Agreement shall prevail, unless otherwise specified in the Order and accepted by Zeni.
Subject to Customer’s compliance with this Agreement, including payment of all fees, Customer shall be provided non-exclusive access to the Zeni Services specified in the Order Form.
Zeni can change, suspend, or discontinue the Zeni Services at any time.
Customer’s Responsibility for Use of Services
Customer is solely responsible for the accuracy and completeness of any data provided by or on behalf of Customer or accessed by the Zeni Services from Third-Party Services on Customer’s behalf (“Customer Data”) and all results derived by the Zeni Services from the Customer Data (“Results”). Customer is responsible for ensuring that it complies with all applicable laws with respect to any use of the Zeni Services, including, but not limited to, ensuring the completeness and accuracy of any financial reporting, invoicing and billing, or tax data.
We rely upon the accuracy and completeness of the Customer Data provided in rendering professional services to you. We are not responsible for verifying the accuracy or completeness of the Customer Data or the Results. Zeni is also not responsible for the acts, omissions, or solvency of any broker, agent, or independent contractor or other advisor or professional associated with your use of the Zeni Services and the Customer Data submitted to Zeni.
In addition, Customer is responsible for retaining copies of all Customer Data and the Results for any legal or other compliance purpose.
What is Not Included in the Zeni Services
The Zeni Services are not designed, and should not be relied upon, as a substitute for your own business judgment nor are they meant to mitigate the necessity of your personal review of any Customer Data provided to the Zeni Services or Results generated from (such as financial reports) the Zeni Services. The Zeni Services are designed to supplement your own finance functions. In addition, the Zeni Services are not designed to discover fraud, irregularities, or misrepresentations made in Customer Data provided to us or the Results generated from such Customer Data.
The Zeni Services do not include tax planning, auditing services or providing audited or reviewed financial statements. We do not provide legal services to Customers. Information discussed with us should not be construed as legal advice, and the Zeni Services do not form an attorney-client relationship between Zeni and any Customer.
Mobile Application
We also provide a mobile application that you can use to access the Zeni Services. Each authorized user of your account may download one copy of the App to its mobile device solely for purposes of accessing the Zeni Services. The App may be available for download from one or more platforms, such as the Apple App Store or Google Play (“App Stores”). Your download, installation, access to or use of the App is also bound by the terms and conditions and privacy policies of the applicable App Store (“App Store Terms”). If there is any conflict between this Agreement and the App Store Terms, then this Agreement will prevail. This App is independent of and is not associated, affiliated, sponsored, endorsed or in any way linked to any App Store. You and we acknowledge that this Agreement is entered into between you and us only, and not with any App Store, and we, not the App Store, are solely responsible for the App and the content thereof to the extent specified in this Agreement.
Quickbooks Online™
We use Intuit Inc.’s Quickbooks Online™ to provide the Zeni Services. If you don’t already have an account, we will create one for you. Your and our use of Quickbooks Online™ will be governed by Intuit’s Terms of Service and Privacy Policy.
Third-Party Services and Login Credentials
The Zeni Services enable Customers to automatically transfer data from third-party websites and services, like your bank account (“Third-Party Services”) into the Zeni Services. If you provide us with login credentials (for example, an account name or number, password, answers to security questions (collectively, the “Login Credentials”)), you both (a) give us permission, and a limited power of attorney, to use them to login to these Third-Party Services and access, transfer, reformat, and manipulate your account on your behalf; and (b) represent to us that you have the authority to give us this permission and that our use of the Login Credentials does not violate the terms and conditions of the Third-Party Services. We will maintain Login Credentials in encrypted form, and we will only use them as described in this Agreement.
Unauthorized Uses of the Zeni Service
You will only use the Zeni Services in accordance with applicable laws, rules, regulations and orders and the Zeni Acceptable Use Policy. We may suspend or terminate provisions of the Zeni Services, in whole or in part, where we believe it is being used in a manner that breaches this Agreement (including the Acceptable Use Policy) or creates risk of personal injury, property damage, or legal liability for Zeni, you or any third-party, or may cause Zeni to lose the services of one of our third-party service providers. You represent and warrant that any information you provide to us about your (or, if you are acting on behalf of another, that person’s) business, products, or services is accurate and complete.
Modifications to the Zeni Services
We are constantly changing and improving the Zeni Services. Any updates or upgrades to the Zeni Services that we may offer to you under your Order will be subject to this Agreement. We may add or remove functionality or features, and we may suspend or stop part of the Zeni Services altogether.
Customer Equipment
Customer is solely responsible for the operation and maintenance of the Customer Systems and for having and paying for all equipment and internet access and mobile or wireless service necessary to access and use the Service. Zeni disclaims all warranties, express or implied, and shall have no liabilities to Customer, arising from or related to the operation or maintenance of the Customer Systems or any incompatibilities, faults, defects, or damage attributable thereto. For the purposes of this Agreement, “Customer Systems” means any server systems, mobile devices, personal computers or other equipment owned, operated, or managed by Customer on which the Zeni Service is accessed.
Data Security and Transfer & Privacy
Any personally identifiable information (“PII”) that you provide through the App and Zeni Services will be processed and shared in accordance with our privacy policy at https://zeni.ai/privacy-policy (“Privacy Policy”), which is incorporated herein by reference. If you are providing PII of other persons, you represent and warrant that you have complied with all applicable laws to provide such PII to Zeni to provide the Zeni Services, including providing all required notices and obtaining all necessary consents. To the extent required by law, the parties will execute such additional agreements as may be necessary to enable Zeni to process PII under applicable law.
Zeni stores both Customer Data and PII in a SSL encrypted cloud using information security, infrastructure and facilities. We use reasonable efforts to ensure that all third-party facilities used to store and process Customer Data and PII adhere to reasonable security standards no less protective than the security standards at facilities where Zeni stores and processes its own information of a similar type. As part of providing the Services, we may transfer, store and process Customer Data, including PII, in the United States. By using the Services, you consent to this transfer, processing and storage of Customer Data, including PII, in the United States, which may have less protections for PII than your jurisdiction of residence.
We cannot guarantee 100% security of any system or any transmission over the Internet. You are responsible for the security of the Customer Systems used to access the Zeni Services and for maintaining the confidentiality of you and your authorized users’ login credentials to the Zeni Services, and will immediately notify us of any suspected unauthorized use of your account, or other account related security breach. You will not use another user’s login credentials without the other user’s express permission.
In addition, the Zeni Services may link to other websites, and other websites may link to the Zeni Services. Third-party sites and services are not under our control, and you agree that Zeni shall not be responsible or liable, directly or indirectly, for any damage or loss in connection with the use of or reliance on any such content, products, or services available from any such third-party.
You agree to provide Zeni with remote access, when necessary, to your accounting and bank feed systems, as may be required by the Zeni Services. You are solely responsible for the adequacy of its security measures for remote access users. You represent and warrant that your use of the Zeni Services will not violate any agreement or terms to which you are subject.
Acceptable Use Policy
Customer and its authorized employees, Affiliates, and contractors may only access and use the Zeni Services in compliance with the Agreement and Order Form, and applicable law. You may not (i) sell, resell, rent, or lease the Zeni Services or use it in a third-party service capacity; (ii) use the Zeni Services to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party privacy, publicity or other rights; (iii) interfere with or disrupt the integrity or performance of the Zeni Services; (iv) attempt to gain unauthorized access to the Zeni Services or their related systems or networks; (v) engage in scraping or data mining of the Zeni Services; (vi) reverse engineer the Zeni Services or the software or program underlying the Zeni Services; or (vii) access the Zeni Services to copy any feature, function, or graphic for competitive or benchmarking purposes.
Non-Solicitation
To the fullest extent permitted under applicable law, you hereby agree that, during the Term and for a period of twelve (12) months immediately following the termination of this Agreement, you will not either directly or indirectly solicit, induce, recruit, or encourage any of Zeni’s employees, contractors, or consultants (“Zeni Personnel”) to terminate their relationship with Zeni or form any employment, contracting, or consulting relationship with any other person or entity (“Hiring Party”). You agree that such breach will render you liable to Zeni for liquidated damages in the amount of hundred percent (100%) of the annual base compensation agreed to between Hiring Party and the Zeni Personnel (the “Liquidated Damages Amount”). Said Liquidated Damages Amount shall be payable to Zeni immediately upon the applicable Zeni Personnel’s first day of employment with Hiring Party.
Customer Data
All data you provide or that is accessed by the Zeni Services from Third-Party Services on your behalf (“Customer Data”) and all Results derived by the Zeni Services from the Customer Data, remain your property. You hereby grant Zeni a non-exclusive, royalty-free, fully paid-up, sublicensable (through one or more tiers of sublicensees), and transferable license to use, reproduce, create derivative works of, distribute, perform, and display Customer Data and the Results during the Term for the purpose of (i) providing the Zeni Services and (ii) developing, modifying, maintaining, supporting or improving the Zeni Services.
During the Term of this Agreement and for thirty (30) days after expiration of your subscription, you may export your Customer Data and Results through the use of the Zeni Services. Please note that we may retain Customer Data and Results, as well as all email communications with customers, after termination or subscription to exercise our rights to Resultant Data above or as required to fulfill our legal obligations, exercise or defend legal claims, enforce this Agreement or comply with applicable law or legal process.
Notwithstanding anything to the contrary in this Agreement, Zeni shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Zeni Services and related systems and technologies (including, without limitation, information concerning Customer Data and Results, collectively, “Resultant Data”), and Zeni will be free (during and after the Term of this Agreement) to (i) use such Resultant Data to improve and enhance the Zeni Services and for other aggregated statistical analysis, technical support, development, diagnostic, corrective and other business purposes, and (ii) disclose such Resultant Data solely in aggregate or other de-identified form, provided that we will not disclose Customer or any specific Confidential Information of the Customer in connection with our use of such Resultant Data.
You agree to allow Zeni to use your trademarks, logos, trade names, and a description of the business relationship between us, in any Zeni marketing and sales promotion materials.
Payment of Fees
You agree to pay all applicable fees for use of the Zeni Services as specified on the Order Form. For purposes of clarity, your obligation to pay all fees due under an Order Form for the Initial Term and all Renewal Terms thereunder are non-cancelable and survive any termination of the Agreement, regardless of whether such fees are payable in full upfront, payable in installments (e.g., monthly payments), or otherwise. Zeni will collect payment for the fees automatically via ACH or credit card. If we are unable for any reason to collect any payment via ACH or credit card, you agree that we may invoice you for the payment amount (including by email) and that any such invoice is due and payable upon receipt. Fees are exclusive of taxes, which you are responsible for if applicable. You hereby authorize Zeni or its payment processor to initiate entries to your business bank checking accounts or charge your credit cards on file with Zeni (using your business address on file) in order to pay amounts that you owe to Zeni (including for any Renewal Terms as those payments come due), and, if necessary, to initiate adjustments for any transactions credited or debited in error. Without derogation to any other rights and remedies, Zeni may immediately suspend provision of the Services if your account is past due. Except to the extent expressly set forth in this Agreement, all payments are non-refundable and non-creditable.
Zeni may change the pricing applicable to each Renewal Term upon at least forty-five (45) days written notice (including email) prior to the renewal date.
Overdue Fees
All fees not paid to us by the date such fees become due and payable in accordance with the Agreement shall be subject to a finance charge of one and one half percent (1.5%) per month simple interest (or, if less, the maximum amount allowed under applicable law), with such interest charges starting on the due date for such fees. You agree that you will promptly reimburse the Company for any costs and expenses incurred by the Company in connection with collecting any past due amount, including reasonable attorneys fees.
Mutual Confidentiality
“Confidential Information” means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Zeni’s Confidential Information includes without limitation the Zeni Services, its user interface design and layout, operating policies and procedures, and pricing information.
The Recipient will not disclose or use any Confidential Information of Discloser for any purpose outside of the scope of this Agreement, and must make commercially reasonable efforts to limit access to Confidential Information of Discloser to its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.
Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third-party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order but will use reasonable efforts to provide Discloser with advance notice to seek a protective order.
Zeni Intellectual and Other Property
The software, workflow processes, procedures, user interface, designs, and other technologies provided as part of the Zeni Services are proprietary property of Zeni and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Zeni. Customer may not remove or modify any proprietary marking or restrictive legends in the Zeni Services. Any feedback or suggestions (“Feedback”) you provide us about the Zeni Services is owned by Zeni, and we may use such Feedback without any payment or other obligation to you. Zeni reserves all rights in the Zeni Services unless expressly granted in this Agreement.
Zeni and the Zeni logo are trademarks of Zeni, Inc.; unauthorized use is strictly prohibited. All third-party trademarks are used for referential purposes, and do not indicate or suggest that the owners of such third-party trademarks endorse or are affiliated with Zeni.
Term, Termination, Suspension
Initial Term
This Agreement is effective on the date you sign an Order Form or you otherwise agree to these terms (for example, by clicking through an online agreement) (the “Effective Date”). Your initial subscription term will begin at the subscription start date and continue, unless terminated earlier, for the term specified on your Order Form (the “Initial Term”). Any renewal under Automatic Renewal will be referred to as a “Renewal Term.” An Initial Term or Renewal Term may be referred to generally in this Agreement as a “Term”.
Renewal
Upon the end of the Initial Term and any Renewal Term, except to the extent prohibited by law, your subscription will automatically renew for the same duration as the Initial Term unless you give us notice (via team@zeni.ai) at least (a) seven (7) days for monthly or quarterly subscriptions; or (b) thirty (30) days for annual subscriptions, in each case, prior to the end of the then-current Initial Term or Renewal Term, as applicable.
Termination By Us
We may terminate your subscription at any time by providing notice of termination to you via the email address we have on file. In the event we terminate your subscription for any reason other than your violation of the section entitled “Unauthorized Uses of the Zeni Services” or your material breach of this Agreement, we will give you a refund of prepaid fees for unelapsed months of the Services.
Termination By You
You may only terminate your subscription prior to its expiration with our prior written consent. If we consent to any such termination request, you acknowledge and agree that: (i) you remain obligated to pay all fees specified in the Order Form that have accrued as well as all those which would have accrued during the entire duration of the then-remaining Initial Term or Renewal Term (as applicable); (ii) all such payment obligations shall be accelerated and due and payable in full immediately (e.g., if a single calendar year subscription with monthly payments is terminated prior to the end of the calendar year, all fees that would have been due through the end of such year are due and payable immediately in addition to any previously accrued but unpaid fees); and (iii) we may proceed to collect such fees as contemplated under the Payment of Fees and Overdue Payments sections above. For the avoidance of doubt, any prepaid subscription fees are non-refundable and non-creditable in all circumstances other than to the extent expressly set forth herein.
Effect of Termination or Expiration of Subscription
In the event your subscription ends or the Agreement is terminated, we will try to transfer to you the “master administrator” status for the Intuit Quickbooks Online™ account that was maintained for you by Zeni, so that you can elect to maintain that subscription with Intuit or export your data. Upon termination or ending of your subscription, you will cease to have access to the Zeni Services (or any Customer Data or Results on the Zeni Services) and or any right to use the App. You should uninstall the App from any devices.
Survival
Any terms that by their nature must survive termination of this Agreement to enable a party to assert its rights and receive the protections of this Agreement, will survive (including without limitation, the sections entitled Zeni Intellectual and Other Property, Mutual Confidentiality, Customer Data, Payment of Fees, Overdue Fees, Mutual Warranties, Customer Warranties, Indemnity, Liability Limit, Arbitration, Governing Law and Venue, Assignment, General and Entire Agreement).
Mutual Warranties
Each party represents and warrants to the other party that such party is a corporate entity duly organized, validly existing, and in good standing under the laws of the state or country specified in the Order Form, and such party has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby.
Customer Warranties
Customer hereby represents and warrants to Zeni that: (i) Zeni’s use, reproduction, modification, distribution, performance, and display of the Customer Data will not infringe, violate, or misappropriate any intellectual property rights of a third-party; (ii) Customer exclusively owns or has a valid and written license agreement to all Customer Data provided to Zeni via the Zeni Services or otherwise and has all rights necessary to grant to Zeni the rights and licenses contained in this Agreement, including the right to use Login Credentials to access Third-Party Services; (iii) Customer’s providing, disclosing, and delivering of Customer Data and use of the Zeni Services will not violate any applicable laws, regulations, contractual commitments or privacy commitments; and (iv) the Customer Data does not include any viruses, trap doors, time bombs, Trojan horses or other malicious code.
Limited Warranty and Warranty Disclaimer
Zeni represents and warrants that all professional services performed as part of the Zeni Services under this Agreement shall be performed in a workmanlike and professional manner. You must provide notice of breach of this warranty within thirty (30) days of the services being performed or the warranty is void. Your sole remedy and our sole obligation for breach of this representation is at Zeni’s sole discretion to: (a) reperform the applicable services or (b) refund the amount of fees applicable to the services.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, YOUR USE OF THE ZENI WEBSITE, SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. THE ZENI SERVICES ARE PROVIDED "AS IS." ZENI DOES NOT WARRANT ANY PARTICULAR RESULT FROM THE ZENI SERVICES AS SUCH RESULTS DEPEND ON CUSTOMER DATA PROVIDED BY YOU. THEREFORE, YOU ASSUME ALL RISK FROM USE OF THE ZENI SERVICES. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZENI DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ZENI TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE ZENI SERVICES, ZENI DOES NOT GUARANTEE THAT THE ZENI SERVICES CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE ZENI SERVICES MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED. CUSTOMER ASSUMES ALL RISK FROM USE OF THE ZENI SERVICES, INCLUDING ALL RESULTS.
ZENI DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE ZENI SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS OR ANY ACCOUNTING STANDARDS.
Liability Limit
ZENI IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LEGAL, TAX, OR ACCOUNTING COMPLIANCE ISSUES, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; DAMAGE TO REPUTATION; LOSS OF PROFITS, PROSPECTIVE ECONOMIC ADVANTAGE, GOODWILL, CUSTOMERS, CAPITAL, OR REVENUE; AND ANTICIPATED COST SAVINGS), ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE ZENI SERVICES, EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF THE DAMAGE OR LOSS IS FORESEEABLE.
EXCEPT FOR ZENI’S INDEMNITY OBLIGATIONS, ZENI’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE ZENI SERVICES OR THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12 MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
Indemnity
Zeni will defend or settle any third-party claim against Customer to the extent that such claim alleges that Zeni technology used to provide the Zeni Services violates a copyright, known patent, trademark, or other intellectual property right, if Customer promptly notifies Zeni of the claim in writing, cooperates with Zeni in the defense, and allows Zeni to solely control the defense or settlement of the claim. Zeni will pay infringement claim defense costs it incurs in defending Customer, Zeni negotiated settlement amounts, and court awarded damages. If such a claim appears likely, then Zeni may modify the Zeni Services, or procure the necessary rights, or replace it with the functional equivalent, or terminate the functionality and refund any prepaid and unused fees. Zeni has no obligation for any claim arising from: Zeni’s compliance with Customer’s specifications; a combination of the Zeni Services with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by Zeni. THIS PARAGRAPH CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND ZENI’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
Customer hereby irrevocably agrees to indemnify, defend, and hold Zeni, its Affiliates, directors, officers, employees, and agents harmless from and against any and all loss, costs, damages, liabilities, and expenses (including attorneys’ fees) arising out of or related to (i) any third-party claim resulting from a breach by Customer of any of Customer’s covenants, representations, or warranties contained in this Agreement; (ii) the Customer Data and Results and/or (iii) Customer’s use of the Zeni Services.
Arbitration
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to Zeni’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents), all claims arising out of or relating to this Agreement and your use of the Zeni Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The parties agree that the arbitration shall take place in Santa Clara County, California.
The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement or the Zeni Services, including, but not limited to, any claim that all or any part of these Terms is void or voidable. YOU EXPRESSLY WAIVE YOUR RIGHT TO A TRIAL BY JURY. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Zeni will pay the additional cost, provided that each party will be responsible for their share of the arbitrator fees. You agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Zeni is a party to the proceeding. This arbitration provision will be governed by the Federal Arbitration Act.
If this arbitration provision is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in the Governing Law and Venue section shall govern any claim in court arising out of or related to the Agreement.
Governing Law and Venue
This Agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Except for disputes subject to the arbitration provision, any suit or legal proceeding must be exclusively brought in the federal or state courts for Santa Clara County, California, and Customer submits to this personal jurisdiction and venue. Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its reasonable attorney’s fees and costs from the other party.
Independent Contractors
The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day-to-day activities of the other; (ii) constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking; or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
Assignment
Customer may not assign or transfer this Agreement or an Order Form to a third-party, without the prior written consent of Zeni, not to be unreasonably withheld, except that this Agreement and any Order Form may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets of a party. Zeni may freely assign this Agreement and any Order Form, and its rights and obligations thereunder by operation of law or otherwise. Zeni may also use subcontractors to perform services, in our sole discretion and without notice; provided that the use of any such subcontractors shall not affect our obligations or responsibilities to you.
General
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect.
No waiver of any term or condition of this Agreement will be valid or binding on either party unless the same will have been mutually assented to in writing by an officer of both parties. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter.
The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”
Entire Agreement
This Agreement and any valid Orders constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written. If there is any inconsistency between this Agreement and an Order, the Order prevails. Customer is not relying on any representations, oral or written, not included in this Agreement. No representation, promise, or inducement not included in this Agreement is binding.
