BY ACCEPTING THIS AGREEMENT OR USING THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE AS AN INDIVIDUAL, THE TERM “USER” REFERS TO YOU. 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “USER” SHALL REFER TO THE ENTITY YOU REPRESENT. 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 SERVICES.
User and ZeveraHost here by agree as follows :
- 1. ZeveraHost Service Subscription Agreement.
These Terms and Conditions shall apply to use of ZeveraHost’s subscription services, content and related components (“Services”) which may be ordered by User under a free trial or upgrade option of Services to be provided hereunder (“Subscription”). These Terms and Conditions and all Subscriptions (collectively referred to as this “Agreement”) represent the parties’ entire understanding regarding the Services.
2. ZeveraHost Free Trial Service.
If User registers for a free trial, ZeveraHost will make one or more Services available to User on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Services, or (b) the start date of any purchased subscriptions ordered for such Services or (c) the pre-mature termination of free trial by User or ZeveraHost for any reason. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES.
3. Right to Use the ZeveraHost Services.
During the Subscription Term set forth in the Subscription, ZeveraHost grants to User a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by User or on User’s behalf, and who are User’s employees, agents or contractors (“Users”), to access and use the Services subject to the terms of this Agreement. Each Subscription defines specific usage rights (“Usage Rights”), and User shall at all times ensure that its use does not exceed its Usage Rights.
4. Confidential Information.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except to perform its obligations hereunder or as permitted in Section 11 below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law.
5. Usage Restrictions and Representations.
5.1 User shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to ZeveraHost; or (iv) remove any proprietary notices or labels from the Services or Software. User shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service or otherwise outside of the scope of the express rights granted herein.
5.2 User shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with ZeveraHost’s provision of the Services. User shall be responsible for maintaining the security of its equipment and account access passwords. User represents and warrants that User will use the Services only in compliance applicable laws and regulations. User shall be liable for all acts and omissions of its Users.
5.3 ZeveraHost may immediately suspend User’s password, account, and access to the Services if (i) User fails to make payment due within ten business days after ZeveraHost has provided User with notice of such failure; or (ii) User violates Section 3, 4, or 5 of these Terms and Conditions. Any suspension by ZeveraHost of the Services under the preceding sentence shall not relieve User of its payment obligations under this Agreement.
6.1 ZeveraHost owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by User or any other party relating to the Services or Software shall be owned by ZeveraHost, and User hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by ZeveraHost.
6.2 User owns any data, information or material originated by User that User submits or provides in the course of using the Services (“User Data”). ZeveraHost has no ownership rights in or to User Data. User shall be solely responsible for the accuracy, quality, content and legality of User Data, the means by which User Data is acquired and the transfer of User Data outside of the ZeveraHost Services. Except to the extent User or any Users make any User Data accessible to other users or the public through the Services, User Data shall be deemed to be User Confidential Information pursuant to Section 4 above. User represents and warrants that it has all rights necessary to upload the User Data to the Services and to otherwise have such User Data used or shared, as applicable, by ZeveraHost as part of the Services.
7. Billing and Payment.
7.1 User shall pay all fees set forth in the Subscription. All fees are non-cancelable and nonrefundable, except as expressly specified in Section 9.2. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and User shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on ZeveraHost’s income), even if such amounts are not listed on the Subscription. User shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
7.2 All amounts invoiced hereunder are due and payable as specified in the Subscription. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
7.3 If at any time ZeveraHost determines that User is exceeding the Usage Rights, ZeveraHost shall notify User and User shall bring its usage within the limits of such Usage Rights. If User fails to do so within 30 days of receipt of ZeveraHost’s notice, ZeveraHost reserves the right to charge and User agrees to pay ZeveraHost’s then-current usage fees for such overage.
7.4 Unless otherwise expressly agreed by the User, the term of the service purchased will be for only one non-recurring period as selected by the User. The User will not be automatically rebilled for the service upon expiration of the selected term. At the end of each term, the User may reactivate the service by purchasing it for a new term.
8. Term and Termination.
8.1 This Agreement shall commence as of the date set forth in the first Subscription or the beginning of a free trial, if earlier, and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Subscription (or the end of the free trial if no purchased subscription is ordered). All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
8.2 In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Subscription for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If ZeveraHost terminates the Subscription for User’s material breach, all fees set forth are immediately due and payable.
8.3 Upon any termination or expiration of a Subscription, User’s right to access and use the Services covered by that Subscription shall terminate. Notwithstanding the foregoing, at User’s request if received within 30 days of termination of the Subscription, ZeveraHost will permit User to access the Services solely to the extent necessary for User to retrieve a file of User Data then in ZeveraHost’s possession. User acknowledges and agrees that ZeveraHost has no obligation to retain User Data and that ZeveraHost will have the right to irretrievably delete and destroy User Data after 30 days following the termination of this Agreement.
9. Representations, Disclaimer of Warranties, Indemnities.
9.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement. ZeveraHost warrants to User that it will (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. User must notify ZeveraHost of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.
9.2 For breach of the express warranty set forth above, User’s exclusive remedy shall be the re-performance of the deficient Services. If ZeveraHost cannot re-perform such deficient Services as warranted, User shall be entitled to recover a pro-rata portion of the fees paid to ZeveraHost for such deficient Services, and such refund shall be ZeveraHost’s entire liability.
9.3 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond ZeveraHost’s reasonable control, but ZeveraHost shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
9.4 ZeveraHost shall defend at its expense any third party claim, suit or proceeding (each, a “Claim”) brought against User by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party, and ZeveraHost shall pay all costs and damages finally awarded against User by a court of competent jurisdiction as a result of any such Claim; provided that User (a) promptly gives written notice of the Claim to ZeveraHost; (b) gives ZeveraHost sole control of the defense and settlement of the Claim (provided that ZeveraHost may not settle any Claim unless it unconditionally releases User of all liability); and (c) provides to ZeveraHost, at ZeveraHost’s cost, all reasonable assistance. The foregoing indemnity shall not apply to any Claim based upon or arising from (i) any use of the Service outside the scope of this Agreement, or (ii) a combination of the Service with any content or other technology not provided by ZeveraHost, to the extent the Claim would not have arisen but for such combination. If the use of the Services by User has become, or in ZEVERAHOST’s opinion is likely to become, the subject of any claim of infringement, ZeveraHost may at its option and expense (i) procure for User the right to continue using and receiving the Services as set forth hereunder, (ii) replace or modify the Services to make them non-infringing with at least equivalent functionality; or (iii) if options (i) and (ii) are not reasonably practicable, terminate this Agreement and refund any prepaid fees for unearned Services.
9.5 User shall defend at its expense any Claim brought against ZeveraHost alleging that User Data, or User’s use of the Services in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation, and User shall pay all costs and damages finally awarded against ZeveraHost by a court of competent jurisdiction as a result of any such Claim; provided that ZeveraHost (i) promptly gives written notice of the Claim to User; (ii) gives User sole control of the defense and settlement of the Claim (provided that User may not settle or defend any Claim unless it unconditionally releases ZeveraHost of all liability); and (iii) provides to User, at User’s cost, all reasonable assistance.
9.6 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ZEVERAHOST AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE, NON-INFRINGEMENT AND QUALITY. ZEVERAHOST AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS USER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ZEVERAHOST AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET USER’S REQUIREMENTS. USER ACKNOWLEDGES THAT NEITHER ZEVERAHOST NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ZEVERAHOST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY ZEVERAHOST, THE SERVICES ARE PROVIDED TO USER ON AN “AS IS” BASIS.
10. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (OR, IN THE CASE OF USER’S LIABILITY, PAID AND/OR PAYABLE) BY USER IN THE PRECEEDING 12 MONTHS.
11. Statistical Information.
Notwithstanding anything else in this Agreement or otherwise, ZeveraHost may monitor User’s use of the Services and use User Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate User Data and/or identify User’s Confidential Information. ZeveraHost retains all intellectual property rights in such information.
ZeveraHost may give notice applicable to ZeveraHost’s general Services User base by means of a general notice on the Services portal, and notices specific to User by electronic mail to User’s e-mail address on record in ZeveraHost’s account information.
13. General provisions.
13.1 Any action, Claim, or dispute related to this Agreement will be governed by Arizona law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
13.2 This Agreement (including all Subscription(s)) represents the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. User acknowledges that this Agreement is a contract between User and ZeveraHost, even though it may be electronic and not physically signed by User and ZeveraHost, and it governs User’s use of the Service and takes the place of any prior agreements between User and ZeveraHost. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
13.3 No joint venture, partnership, employment, or agency relationship exists between ZeveraHost and User as a result of this Agreement or use of the Services. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement. Any purported assignment in violation of this Section shall be void.