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Terms and Conditions

1. Definitions

1.1 “Acceptance Criteria” means the specifications provided by Customer for the Services and agreed to by ZEALS in writing.
1.2 “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity, or otherwise.
1.3 “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
1.4 “Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in the state of California, the United States of America are authorized or required by Law to be closed for business.
1.5 “Chatbot” means that component of the software utilized by ZEALS that generates conversations with End-Users through the Designated Platform.
1.6 “Confidential Information” has the meaning set forth in Section 8.1.
1.7 “Disclosing Party” has the meaning set forth in Section 8.1.
1.8 “Effective Date” has the meaning set forth in the preamble.
1.9 “End-User” means those end users interacting with the Chatbot through the Designated Platform(s).
1.10 “Force Majeure Event” has the meaning set forth in Section 16.9.
1.11 “Initial Term” has the meaning set forth in Section 14.1.
1.12 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.13 “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
1.14 “Customer” has the meaning set forth in the preamble.
1.15 “ZEALS Indemnitee” has the meaning set forth in Section 12.1.
1.16 “Loss” or “Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.17 “Parties” has the meaning set forth in the preamble.
1.18 “Party” has the meaning set forth in the preamble.
1.19 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
1.20 “Receiving Party” has the meaning set forth in Section 8.1.
1.21 “Renewal Term” has the meaning set forth in Section 14.2.
1.22 “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, and legal advisors.
1.23 “Services” means the internet-related services provided by ZEALS related to the creation, distribution and management of the Chatbot to promote the Target Products, as well as any other services as agreed between the Parties, in each case as set forth in a Purchase Order or other agreement in writing.
1.24 “Target Products” means those products of Customer specified in a Purchase Order which will be promoted by the Chatbot.
1.25 “Term” has the meaning set forth in Section 14.2.
1.26 “Territory” means the United States of America and all current and future U.S. commonwealths, states and territories.
1.27 “Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to ZEALS, including any third-party: (a) documents, data, content or specifications; (b) software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

2. Performance of Services

2.1 Scope of Services. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, ZEALS shall provide Customer with the Services during the Term. The Services shall be provided according to any Acceptance Criteria specified by the Customer and reasonably agreed to by ZEALS in writing. ZEALS may assign, delegate, or otherwise transfer any of its rights or obligations in performing the Services to any third party without prior consent of Customer.
2.2 Delivery of Services. ZEALS shall deliver the Services on the timeline set forth in the Purchase Order or as otherwise agreed by the Parties in writing. In the event that Customer requests a change to the Services after ZEALS has commenced the Services, the Parties shall consult with each other to determine a number of days to extend the timing of such Services and any additional Fees for such changes.
2.3 Acceptance of Services. Customer has thirty (30) days following the delivery date of any Services to test whether such Services conform in all material respects to the Acceptance Criteria. If Customer believes that the Services do not conform in any material respect to the Acceptance Criteria, Customer must provide written notice to ZEALS detailing such non-compliance, and ZEALS will, in its sole discretion, either (i) correct the non-conformities or (ii) provide an acceptable alternative in a timely manner. If Customer does not send written notice within thirty (30) days following the delivery date of the Services, such Services will be deemed accepted.

3. Service Restrictions

Except as this Agreement expressly permits, Customer shall not, and shall not permit any other Person to:
(a) copy the Services, in whole or in part;
(b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Services or the Chatbot;
(c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or the Chatbot to any third party;
(d) reverse engineer, disassemble, decompile, decode, or adapt the Services or the Chatbot, or otherwise attempt to derive or gain access to the source code of the Services or the Chatbot, in whole or in part;
(e) bypass or breach any security device or protection used for or contained in the Services or the Chatbot;
(f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Services or the Chatbot;
(g) use the Services or the Chatbot in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law;
(h) use the Services or the Chatbot for purposes of: (i) benchmarking or competitive analysis of the Services or the Chatbot; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to ZEALS’ detriment or commercial disadvantage;
(i) use the Services in a manner that reasonably conflicts with Law or which is not authorized by this Agreement;
(j) use the Services in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or
(k) use the Services in any manner or for any purpose or application not expressly permitted by this Agreement.

4. Platform and Content Requirements

4.1 Use of Tags. During the Term, Customer shall maintain a link code embedded on Customer’s website (such link, a “Tag”) as further agreed upon by the Customer and ZEALS in order for Customer to receive the Services. Customer acknowledges and agrees that ZEALS’ ability to provide the Services is dependent upon End-User’s ability to interact with Tags. Customer acknowledges and agrees that the functionality of the Chatbot is dependent upon End-Users being directed to the Chatbot through a Tag, and that without such direction the Chatbot may be unable to respond to End-User messages that are sent directly to the Chatbot through the Designated Platform.
4.2 Creation and Use of the Service Account(s). Customer acknowledges and agrees that, in order to receive the Services, Customer must (1) designate or otherwise provide ZEALS with the login credentials and access to an account on the Designated Platform (and any account on any other platforms necessary to create and operate such account) that will be used in connection with the Services, or (2) permit ZEALS to create and operate an account on the Designated Platform (and any account on any other platforms necessary to create and operate such account) on Customer’s behalf (in each case, the “Service Accounts”). ZEALS, and if agreed by ZEALS, Customer, shall designate one or more persons as having the authority to access the Service Accounts and pages that manage the creation of Chatbot conversations and distribution of Customer Content (such person, an “Administrator”). Each such designating Party shall designate Administrators to set passwords and manage the Service Accounts. Any act or omission of any Administrator(s) of Customer shall be deemed an act or omission of Customer. Customer acknowledges and agrees that ZEALS is not responsible or liable for any Losses arising from or related to any unauthorized access to or use of the Service Accounts. ZEALS’ operation of such Service Accounts will be solely for purposes of providing the Services. The Tag(s) on Customer’s website will direct End-Users to the Service Accounts on the Designated Platform(s). Nothing in this Agreement obligates ZEALS to act as an agent on Customer’s behalf with regard to the services provided on or through the Designated Platform.
4.3 Use of the Designated Platform(s). The Parties acknowledge and agree that the use of the Designated Platform may be subject to certain third party operator or service provider terms and conditions (such terms and conditions, “Platform Rules”). Customer acknowledges and agrees that Customer is wholly responsible for compliance with such Platform Rules, and that a breach of such Platform Rules by Customer will be treated for purposes of this Agreement as a breach of this Agreement.
4.4 Use of ZEALS Trademark. In connection with the Services, ZEALS may display any and all of the ZEALS name, trademark, or logo (together, the “ZEALS Marks”) in connection with the end- End-Users’ engagement with the Chatbot, and such use shall include the right to use the ZEALS Marks in the form of “Powered by ZEALS” or such other similar form(s).
4.5 Content Distribution. ZEALS may, from time to time as directed by Customer, create or place content using materials provided by Customer (such content, “Customer Content”) and distribute such Customer Content via the Chatbot. Customer shall inform ZEALS in advance of any distribution of such Customer Content with Customer’s desired frequency and timing of such distribution. Customer shall provide ZEALS with all materials and data necessary for ZEALS to create the Customer Content no later than seven (7) Business Days before the desired distribution of such Customer Content by ZEALS. If ZEALS determines, in its sole discretion, that the form or content of the Customer Content (including any link destination contents) conflicts with any Laws or any Platform Rules, ZEALS shall not be obligated to distribute such Customer Content. ZEALS does not represent, warrant or guarantee that the Customer Content complies with any applicable Law or any Platform Rules, or that any planned distribution of the Customer Content will be successfully distributed in whole or in part to the Designated Platforms.
4.6 Backup of Customer Content. Any backup of the Customer Content shall be done at Customer’s sole cost and expense, and ZEALS is not obligated to backup any Customer Content.

5. Ownership

Except as otherwise expressly set forth in Section 9.1(b) of this Agreement, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any Intellectual Property Rights of ZEALS, and ZEALS retains all right, title and interest in and to its Intellectual Property Rights, including as to any Intellectual Property Rights used or exercised to provide the Services.

6. Fees and Payment

6.1 Fees. Customer shall pay ZEALS the fees set forth in the Purchase Order (the “Fees”) in accordance therewith and with the terms of this Section 6. If the Term is renewed for any Renewal Term(s) pursuant to Section 14.2, Customer shall pay the fees at the then-current rates that ZEALS charges for the Services during the applicable Renewal Term. With respect to any Fees that are provided as monthly fees, the full monthly amount, without proration, of such Fees shall be payable with respect to any period during the Term that is a partial month.
.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on ZEALS’ income.
6.3 Payment. Customer shall pay all Fees and amounts due and owing under this Agreement set forth on each invoice issued by ZEALS to Customer by the end of the month in which such invoice is issued. Customer shall make all payments hereunder in US dollars by electronic transfer to the address or account specified by ZEALS or such other address or account as ZEALS may specify in writing from time to time.
6.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available to ZEALS:
(a) ZEALS may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse ZEALS for all costs incurred by ZEALS in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, ZEALS may: (i) disable Customer’s use of the Services (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of any license hereunder; and/or (iii) terminate this Agreement under Section 14.3(a) or Section 14.3(b), as applicable.
6.5 No Deductions or Setoffs. All amounts payable to ZEALS under this Agreement shall be paid by Customer to ZEALS in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

7. Conversion Audits

7.1 Conversion Audit Procedure. ZEALS or its nominee (including its accountants and auditors) may, on reasonable request, inspect and audit Customer’s use of the Services under this Agreement and the number of Conversions reported by Customer at any time during the Term and for a period of five (5) years following the expiration or termination of this Agreement. All audits will be conducted during regular business hours. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of ZEALS with respect to such audit.
7.2 Cost and Results of Audit. If the audit determines that Customer’s use of the Services exceeded the usage permitted by this Agreement or that Customer’s reported number of Conversions is below the actual number of Conversions revealed by the audit, Customer shall pay to ZEALS all amounts due for such excess use of the Services and underreporting of Conversions, plus interest on such amounts, as calculated pursuant to Section 6.4(a), and all reasonable costs incurred by ZEALS in conducting the audit. Customer shall make all payments required under this Section 7.2 within ten (10) Business Days of the date of written notification of the audit results.

8. Confidentiality

8.1 Confidential Information. In connection with this Agreement, each Party (the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (the “Receiving Party”). Subject to Section 8.2, “Confidential Information” means all information in any form or medium (whether oral, written, electronic, or other) relating to the Disclosing Party’s business, including technology, trade secrets, know-how, business operations, organization, personnel, plans, forecasts, strategies, finances, commercial matters, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, that (i) is or was disclosed in tangible form and is conspicuously marked “Confidential”, “Proprietary” or the like, or (ii) is or was disclosed in non-tangible form and identified as confidential at the time of disclosure and, within 30 days thereafter, reduced to tangible form and marked as “Confidential”, “Proprietary” or the like. Without limiting the foregoing: the Services, and information and materials provided from ZEALS to Customer regarding proposals, estimates and results of operation of the Services and the terms of this Agreement, are the Confidential Information of ZEALS.
8.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the Term and for a period of two (2) years following expiration or termination of this Agreement:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted under the terms and conditions of Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps/use its best efforts/cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
8.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

9. Intellectual Property Rights

9.1 Intellectual Property Ownership. Customer acknowledges and agrees that:
(a) the Services including the Chatbot are licensed, not sold, to Customer by ZEALS and Customer does not have under or in connection with this Agreement any ownership interest in the Services or Chatbot, or in any related Intellectual Property Rights;
(b) ZEALS is the sole and exclusive owner of all right, title and interest in and to the Services and Chatbot, including all Intellectual Property Rights relating thereto, subject only to limited license granted to Customer as necessary to receive the Services under this Agreement;
(c) if Customer provides Company with any suggestions, ideas, feedback, error identifications or other information related to the Services or the Chatbot or Customer’s use and evaluation of the Services or Chatbot (“Feedback”), Customer hereby assigns to ZEALS all right, title and interest in and to all Feedback, including all Intellectual Property Rights therein, and agrees to assist Customer in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback; and
(d) Customer hereby unconditionally and irrevocably assigns to ZEALS, its entire right, title and interest in and to any Intellectual Property Rights that Customer may now or hereafter have in or relating to the Services or Chatbot (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
9.2 Customer Cooperation and Notice of Infringement. Customer shall, during the Term:
(a) take all commercially reasonable measures to safeguard the Services and Chatbot (including all copies or parts thereof) from infringement, misappropriation, theft, misuse or unauthorized access;
(b) at ZEALS’ expense, take all such steps as ZEALS may reasonably require assisting ZEALS in maintaining the validity, enforceability and ZEALS’ ownership of the Intellectual Property Rights in the Services and Chatbot;
(c) promptly notify ZEALS in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of ZEALS’ Intellectual Property Rights in or relating to the Services or Chatbot; or (ii) any claim that the Services or Chatbot, including any production, use, marketing, sale or other disposition of the Services or Chatbot, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and
(d) at ZEALS’ sole expense, fully cooperate with and assist ZEALS in all reasonable ways in the conduct of any Action by ZEALS to prevent or abate any actual or threatened infringement, misappropriation or violation of ZEALS’ rights in, and to attempt to resolve any Actions relating to, the Services or Chatbot, including having Customer’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
9.3 No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Services or Chatbot.

10. Maintenance and Discontinuation of Services

10.1 Maintenance. ZEALS may, from time to time and in its sole discretion, modify or temporarily suspend or discontinue all or part of the Services for any of the following reasons, provided however that to the extent practicable, ZEALS shall use commercially reasonable efforts to provide notice to Customer prior to any such suspension, discontinuation, or modification:
(a) to perform maintenance, inspection, or modification of the Services;
(b) following the occurrence of any Force Majeure Event;
(c) receipt of notice of any actual or alleged breach or violation of the Platform Rules as set forth by the Designated Platform operator or service provider;
(d) any circumstantial or legal defect in the Chatbot on the Designated Platform or errors by Customer in registration or use of the Chatbot on the Designated Platform, resulting in inability of ZEALS to provide all or part of the Services;
(e) following the actual or suspected inadequacy, defect, or failure of or in Customer’s information technology infrastructure required for receiving or operating any part of the Services; or
(f) as otherwise determined by ZEALS.
10.2 Discontinuation; Suspension. Notwithstanding any obligations in this Agreement, ZEALS may, in its sole discretion, choose to discontinue or suspend all or part of the Services: (a) if requested by the Designated Platform operator or service provider; (b) ZEALS reasonably determines that Customer is in breach of this Agreement; (c) Customer fails to timely make the fee payments set forth in Section 6; (d) Customer suspends payments or becomes insolvent, or where a petition for provisional attachment, attachment, foreclosure, bankruptcy, civil rehabilitation, corporate reorganization, special liquidation or other similar legal insolvency proceedings has been filed with respect to the Customer; (e) any of the materials, data or other information supplied to ZEALS as part of the Customer Materials is untrue or inaccurate; (f) past use of the Services by an Affiliate of Customer was discontinued; or (g) ZEALS determines, in good faith, that the use of the Services by Customer is inappropriate or that continuation of the Services is unduly burdensome on ZEALS. Notwithstanding any suspension or discontinuation of the provision of any of the Services, ZEALS shall not be obligated to refund any Fees or other amounts paid to ZEALS with respect to the Services, and any Fees or other amounts with respect to Services accrued as of such suspension or discontinuation shall remain payable by Customer.
10.3 No Liability. Customer acknowledges and agrees that ZEALS shall not be liable or responsible for any Losses arising from or related to any measures taken by ZEALS pursuant to this Section 10.

11. Representations and Warranties

11.1 Customer Representations and Warranties. Customer represents, warrants and covenants to ZEALS that:
(a) if it is an entity, it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority (or, if Customer is a natural person, Customer has the legal capacity) to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of Customer;
(d) Customer will observe and comply with all applicable Laws, including any Laws concerning the use or collection of personally identifiable information and End-User data through the Services;
(e) the Customer Content does not infringe, misappropriate, or otherwise violate the Intellectual Property Rights of any third parties; and
(f) when executed and delivered by Customer, this Agreement will constitute the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.

12. Indemnification

12.1 Customer Indemnification. Customer shall indemnify, defend, and hold harmless ZEALS and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, a “ZEALS Indemnitee”) from and against any and all Losses incurred by the ZEALS Indemnitee resulting from any Action:
(a) that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
(i) use or combination of the Services or Chatbot by or on behalf of Customer or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by ZEALS nor authorized by ZEALS in this Agreement; and
(ii) information, materials, Customer Content, or technology directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Services;
(b) relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under this Agreement;
(c) relating to gross negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer or any of its Representatives with respect to the Services or Chatbot or otherwise in connection with this Agreement; or
(d) relating to use of the Services or Chatbot by or on behalf of Customer or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement, or in any manner contrary to ZEALS’ instructions.
12.2 Indemnification Procedure. ZEALS shall promptly notify Customer in writing of any Action for which such ZEALS believes it is entitled to be indemnified pursuant to Section 12.1. In the event that any such Actions is asserted against ZEALS by a third party: (a) ZEALS shall reasonably cooperate with Customer at Customer’s sole cost and expense; (b) Customer shall promptly assume control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at Customer’s cost and expense; (c) ZEALS may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing; (d) Customer shall not settle any such Action on any terms or in any manner that adversely affects the rights of ZEALS without ZEALS’ prior written consent; and (e) if Customer fails or refuses to assume control of the defense of such Action, ZEALS shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to Customer, in each case in such manner and on such terms as ZEALS may deem appropriate. ZEALS’ failure to perform any obligations under this Section 12.2 will not relieve Customer of its obligations under this Section 12, except to the extent that Customer can demonstrate that it has been prejudiced as a result of such failure.
12.3 Mitigation. If the Services, or any part of the Services, is, or in ZEALS’ opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of the Services is enjoined or threatened to be enjoined, ZEALS may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services materially as contemplated by this Agreement;
(b) modify or replace the Services, in whole or in part, to seek to make the Services non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Services under this Agreement; or
(c) if, after ZEALS exercise of commercially reasonable efforts, none of the remedies set forth in the above Section 12.3(a) or Section 12.3(b) is reasonably available to ZEALS, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Services, effective immediately on written notice to Customer, in which event:
(i) Customer shall cease all use of the Services and Chatbot immediately on receipt of Customer’s notice; and
(ii) provided that Customer fully complies with its post-termination obligations set forth in Section 12.3, ZEALS shall promptly refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.

13. Limitations of Liability


14. Term and Termination

14.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and continues in effect for the Term identified in the Purchase Order unless terminated earlier pursuant to any of the Agreement’s express provisions (the “Initial Term”).
14.2 Renewal Term. This Agreement will automatically renew for additional successive terms of one (1) year periods following the Initial Term unless earlier terminated pursuant to any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). Notwithstanding anything contained in this Agreement, the Parties acknowledge and agree that ZEALS reserves the right, in its sole discretion, to modify the fees owed by Customer for an upcoming Renewal Term prior to such Renewal Term becoming effective, and that nothing in this Agreement obligates ZEALS to continue offering the Services during any Renewal Term at the same rates as those set forth in the Initial Term.
14.3 Termination. This Agreement may be terminated after 180 days:
(a) by ZEALS, effective on written notice to Customer, if Customer fails to pay any amount when due under this Agreement, where such failure continues more than ten (10) days after ZEALS’ delivery of written notice thereof;
(b) by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
(c) by ZEALS, effective immediately, if the Customer: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
Any amounts accrued and payable by Customer to ZEALS hereunder prior to any termination of this Agreement shall remain payable notwithstanding any such termination.
14.4 Effect of Termination or Expiration.
(a) On the expiration or earlier termination of this Agreement:
(i) all rights, licenses and authorizations granted to Customer hereunder will immediately terminate and Customer will (A) immediately cease all use of and other activities with respect to the Services and Chatbot; (B) within ten (10) days deliver to ZEALS, or at ZEALS’ written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Services, the Chatbot and the ZEALS’ Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to ZEALS in a signed written instrument that it has complied with the requirements of this Section 14.4; and
(b) all amounts payable by Customer to ZEALS of any kind are immediately payable and due no later than ten (10) Business Days after the effective date of the expiration or termination.
14.5 Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 14.5, Section 1, Section 5, Section 6, Section 7, Section 8, Section 9, Section 12, Section 13, and Section 16.

15. Non-Competition

During the Term of the Agreement, Customer shall not internally, or through any third parties, develop or provide any product or service that could reasonably be interpreted to compete with or function similarly to the Services. Notwithstanding the foregoing, nothing in this Agreement shall prohibit Customer from hiring a third party to provide to Customer products or services for use by Customer that could reasonably be considered similar to or compete with the Services.

16. Miscellaneous

16.1 Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute, and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
16.3 Public Announcements. ZEALS may, without Customer’s consent, include Customer’s name and other indicia in its lists of ZEALS’ current or former customers of ZEALS in promotional and marketing materials.
16.4 Notices. All notices permitted or required under this Agreement will be in writing and will be delivered in person, emailed or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement or such other address as either party may specify in writing. Such notice will be deemed to have been given upon receipt.
16.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
16.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.7 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Purchase Order, excluding its exhibits, schedules, attachments, and appendices; (b) second, this Exhibit A, along with any additional exhibits, schedules, attachments, and appendices as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
16.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without ZEALS’ prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.8 is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
16.9 Force Majeure. In no event will ZEALS be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond ZEALS’ reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, armed conflict, riot or other civil unrest, sabotage (including by cyberattack or otherwise), pandemics, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
16.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement, provided that, in the case of Section 12, the ZEALS Indemnitees and their respective heirs, executors, administrators, legal representatives, successors and assigns are intended third party beneficiaries of such indemnification and shall have the right to enforce such indemnification in their own names .
16.11 Amendment and Modification; Waiver. ZEALS may, from time to time, seek to amend the terms of this Agreement by providing written notice to Customer of such amendment. If Customer does not notify ZEALS of an intent to terminate the Agreement within thirty (30) days of receipt of such notice, Customer shall be deemed to have accepted the terms of such amendment. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.12 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.13 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or any licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
16.14 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16.15 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5, Section6, Section 9, or Section 12 of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
16.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Revision history