Updated March 11, 2019
Notifications: We will notify you via email when:
The Subscription Fee does not include any configuration, integration, training, customization or other services (“Professional Services”) with respect to the Program for use by Customer in Customer's system or in accordance with Customer's requirements or specifications. If Customer desires any Professional Services with respect to the Program, such Professional Services shall be subject to payment and governed by a separate services order. Customization details can be requested here.
Company will use commercially reasonable efforts to make our platform available 99.9% of the time during each monthly billing cycle. If Zingtree is unable to meet this service level, you will be eligible to receive a credit to apply to future billing cycles based upon the unavailability for that month. See the last 30 days of uptime here.
Please note that this guarantee applies only to unscheduled outages. Occasional planned server/network maintenance may be necessary. In all but the most urgent cases, we will send out an email notifying customers of maintenance that is to be performed. When notice is sent at least two hours prior to service interruption, the outage does not qualify for our uptime guarantee. Service credits are calculated as follows:
Except as expressly set forth herein: (i) the program and service levels are provided on an "as is" basis; and (ii) all warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of title, merchantability, non infringement, and fitness for a particular purpose are hereby disclaimed to the maximum extent permitted by applicable law. Zingtree will not be liable or responsible for: (a) any technical problems of the internet (including without limitation slow internet connections or outages); and/or (b) any issue that is attributable to customer’s hardware or software or customer’s internet or data service provider.
Limitation of Liability:
Except to the extent prohibited by applicable law, in no event shall Zingtree be liable for any loss of income, profits, goodwill, reputation, special, indirect, incidental, punitive or consequential damages that arise under this agreement or that result from the use of, or the inability to use, the program, even if it has been advised of the possibility of such damages.
Zingtree's total aggregate liability for all damages and losses under this agreement, or in connection with the use of or inability to use the program, shall not under any circumstance exceed the amount of fees actually paid by customer to Zingtree under this agreement within the twelve (12) months preceding the date of bringing a claim.
By Zingtree. Zingtree hereby agrees to defend and indemnify customer against any damages awarded against customer by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding that customer’s use of the program within the scope of this agreement infringes any copyright or trade secret of a third party. Zingtree shall have no obligations or liability hereunder to the extent that the alleged infringement is based on the customer data. without derogating from the foregoing defense and indemnification obligation, if Zingtree believes that the program, or any part thereof, may infringe, then Zingtree may in its sole discretion: (i) obtain (at no additional cost to customer) the right to continue to use the program; (ii) replace or modify the allegedly infringing part of the program so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if Zingtree determines that the foregoing remedies are not reasonably available, then Zingtree may require that use of the (allegedly) infringing program (or part thereof) shall cease and in such an event customer shall receive a prorated refund of any subscription fees paid for the unused portion of the subscription period. This section states Zingtree's entire liability and customer's exclusive remedy for infringement.
By customer. Customer hereby agrees to defend and indemnify Zingtree against any damages awarded against Zingtree by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding that use of the customer data within the scope of this agreement infringes any intellectual property rights of a third party.
General. The defense and indemnification obligations of the indemnifying party under this section are subject to: (i) the indemnifying party being given prompt written notice of the claim; (ii) the indemnifying party being given immediate and complete control over the defense and/or settlement of the claim; and (iii) the indemnified party providing cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party's defense of or response to such claim.
Confidential Information. Each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive ("Confidential Information"). Each party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party's Confidential Information from disclosure to a third party. Neither party shall use or disclose the Confidential Information of the other party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party.
Reference Customer. Zingtree may use Customer’s name and logo on its website and in its promotional materials to state that Customer is a customer of Zingtree and Program user, but will not imply that the parties are affiliated. Customer agrees to serve as a reference customer of Zingtree and shall cooperate with Zingtree's reasonable marketing and referencing requests.
Force Majeure. Neither party shall be liable to the other for any performance delay or failure to perform hereunder, exclusive of payment obligations, due to any act, omission or condition beyond the reasonable control of the affected party, provided the affected party gives prompt notice to the other and makes reasonable efforts to resume performance as soon as possible.
General. This Agreement represents the complete agreement concerning the Program between Customer and Zingtree and supersedes all prior agreements and representations between Customer and Zingtree. If any provision of this Agreement held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Zingtree. Any notice required or permitted to be given hereunder will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, or by overnight delivery. Zingtree may use Customer’s current address, as provided by Customer in connection with billing and payment activities. Zingtree current address may be found on its website at Zingtree.com.