Terms & Conditions

 

Terms & Conditions - Last Edited: January 1, 2017

 

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. BY ACCESSING, USING OR REGISTERING FOR THE PLATFORM, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS, USE OR REGISTER FOR THE PLATFORM.

 

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.

 

This SaaS Agreement (the “Agreement”) is made between you, the customer (“Customer” or “You”) and Zingle, Inc., a Delaware corporation with its principal place of business located at 2270 Camino Vida Roble, Suite K, Carlsbad, California 92011 (“Zingle”).

 

1 Definitions

Capitalized terms not defined in context shall have the meanings assigned to them below:

(a) “Consumers” means Your end-users who use the Service to communicate with You and/or to order products or services from You.

(b) “Customer Data” means all electronic data or information submitted by You to the Platform.

(c) “Device” means Zingle’s proprietary hardware device that enables You to receive and process orders or requests from Consumers.

(d) “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.

(e) “Non-Public Personal Information” means personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers. Non-Public Personal Information specifically does not include all personal information required to use the Service, such as names, email addresses, and mobile phone numbers or derived information such as segments, scores, or lifecycle attributes used to make decisions within the Service.

(f) "Order” means the order form agreed upon between You and Zingle that documents Your purchase of a right to use the Zingle Materials.

(g) “Platform” means Zingle’s proprietary on-demand text messaging service that enables You to communicate with Consumers via text messages submitted through a phone number provided by Zingle or by the conversion of an existing landline phone number You provide to Zingle.

(h) “Zingle Materials” means collectively, the Platform, the Device, and/or the Zingle phone number(s) provided to You by Zingle pursuant to an Order, and all updates, upgrades, improvements, modifications, enhancements, corrections, revisions, refinements and derivative works thereto.

 

2 Rights and Responsibilities

(a) Zingle Responsibilities Subject to Your compliance with the terms and conditions of this Agreement, Zingle will, during the Subscription Term (defined below): (i) make the Zingle Materials available to You in a manner consistent with this Agreement and generally accepted industry standards, (ii) provide basic support for the Platform, and (iii) utilize software and other commercially reasonable security measures to prevent the Platform from containing or transmitting Malicious Code.

(b) Your Rights Subject to Your compliance with the terms and conditions of this Agreement, You have a non-exclusive, non-transferable and non-sublicensable right to access and use the Zingle Materials, during the applicable Subscription Term, for the sole and limited purpose of communicating with Consumers. Your rights to send and receive text messages via the Zingle Materials may be limited based on the level of service identified in the applicable Order, and You agree to abide by such limitations.

(c) Your Responsibilities You are responsible for all activities that occur in Your account(s). and for all legal compliance in connection with Your use of the Zingle Materials. You agree to provide accurate registration information (“Account Information”) and to update Your Account Information as necessary to keep it accurate. Zingle will use Your Account Information in accordance with its Privacy Policy. By providing Zingle with access to Account Information, You consent to Zingle sending You Platform-related notices and emails via the Platform, including without limitation, notices required by law, in lieu of postal mail. We may also use the Platform to send You other messages, including information about the Platform and special offers. To end notification and messaging to You through the Platform, You may adjust Your notification settings through the Platform or terminate Your account. You agree that You will not allow others to use any aspect of Your Account Information. You have responsibility for taking steps to maintain the confidentiality and security of Your account. You agree to notify us immediately of any unauthorized use of Your password and/or account. Zingle will not be responsible for any losses arising out of the unauthorized use of any of Your Account Information and/or account and You agree to indemnify and hold harmless Zingle, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same. You shall (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, (ii) prevent unauthorized access to, or use of, the Zingle Materials, and promptly notify Zingle of any such unauthorized access or use, and (iii) determine the applicability of and comply with all applicable laws, regulations and use guidelines while using the Zingle Materials, including, without limitation, consumer protection laws, the Telephone Consumer Protection Act and its implementing regulations, the Telemarketing Sales Rule, and all state laws governing email and text message communications. You are responsible for providing the network connection, mobile service, carrier charges, and any other hardware and software necessary to use the Zingle Materials. The Platform is licensed for consented-to communications only and You will not use the Platform to send communications to any purchased lists or other numbers obtained from lead generators. You may not rely on any templates, samples, or other materials or information provided by Zingle as being legally compliant. You must rely on your own legal counsel for legal advice.

(d) Use Guidelines You shall use the Zingle Materials solely for Your own internal business purposes and shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Zingle Materials or Your Zingle account information available to any third party, (ii) upload to, or store within the Platform (and the Customer Data shall not contain) any Non-Public Personal Information, (iii) send via the Platform or store within the Platform any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful, discriminatory or tortious material, including material that is harmful to children or violates third party privacy rights, (iv) send via the Platform any unsolicited commercial or non-commercial communication, including any SMS message to a Consumer without having obtained any legally required consent in the manner required by law, or to a Consumer who has revoked consent, (v) send via the Platform, upload to the Platform, or store within the Platform any Malicious Code, (vi) attempt to gain unauthorized access to the Zingle Materials or their related systems or networks, (vii) reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Zingle Materials, or any part thereof, (viii) modify, translate, localize, adapt, create or prepare derivative works of, or create a patent based on the Zingle Materials or any part thereof, (ix) use the Zingle Materials to create or enhance a competitive offering or for any other purpose which is competitive to Zingle, (x) perform or fail to perform any act which would result in a misappropriation or infringement of Zingle’s intellectual property rights in the Zingle Materials, (xi) perform any act that could disable, overburden, or impair the proper working or appearance of the Zingle Materials, such as a denial of service attack or interference with Device operation, or (xii) interfere with or disrupt the integrity or performance of the Zingle Materials or any third party data contained on the Platform.

(e) License to Customer Data You grant Zingle a limited license to use the Customer Data in connection with providing You access to the Zingle Materials.

(f) Device Zingle will deliver the Device F.O.B. Zingle’s shipping point. You assume and bear the entire risk of loss and damage to the Device from any and all causes whatsoever, including, without limitation, theft or casualty, immediately upon delivery of the Device to Zingle’s freight carrier. You assume all responsibility regarding requirements for licenses, titles, permits, and other certificates as may be required by law or otherwise to use the Device. Without limitation of the foregoing, if the Device is to be used outside the U.S., You will arrange, pay for and provide all necessary international import/export bonds, carnets, or any other relevant documentation and fees related to international import or export of the Device. You will return the Device at the end of the Term in good repair, condition, and working order as determined by Zingle in its sole discretion. You will not make any alterations, additions, or improvements to the Device. Zingle will use commercially reasonable efforts to provide commercially reasonable support for the Device during the Term. If there is an issue with your Device, contact info@zingle.me.

 

3 Proprietary Rights

You understand and agree that (i) the Zingle Materials are protected by copyright and other intellectual property laws and treaties, (ii) Zingle and/or its suppliers own the copyright, and other intellectual property rights in the Zingle Materials, (iii) the Zingle Materials are licensed, and not sold, (iv) this Agreement does not grant You any rights to Zingle’s trademarks or service marks, and (v) Zingle reserves any and all rights, implied or otherwise, which are not expressly granted to You in this Agreement. As between Zingle and You, You exclusively own all rights, title and interest in and to the Customer Data.

 

4 Fees, Payment and Taxes

You agree to pay to Zingle the fees specified in each Order. For purchases by credit card, the credit card that You provide for billing purposes will be billed on a periodic basis during the Subscription Term and any subsequent renewals thereof in accordance with the payment schedule set forth in the applicable Order, and You agree to keep Your credit card current and active during the Subscription Term or to notify Zingle of any changes. You authorize Zingle to automatically charge the payment method we have on file for your subscription payments. For all other purchases, You will be invoiced in accordance with the payment schedule set forth in the applicable Order and You agree to make all payments due to Zingle in full within thirty (30) days from the date of each invoice. Zingle reserves the right to charge You, and You agree to pay, a late penalty of 1.5% per month (or the maximum rate permitted by law, whichever is the lesser) for any amounts payable to Zingle by You that are not subject to a good faith dispute and that remain unpaid after the due date until such amount is paid. Payment for the Device shall be made over the Subscription Term and payable in equal installments with each payment for the Platform. The fees stated in an Order may not include taxes. If Zingle is required to pay sales, use, property, value-added or other taxes based on the Zingle Materials provided under this Agreement or on Your use of the Zingle Materials, then such taxes shall be billed to and paid by You, except for to taxes based on Zingle’s income.

 

5 Term and Termination

This Agreement shall remain in effect for the duration of the applicable Subscription Term. Each Subscription Term commences on the date that Zingle makes the Zingle Materials available to You following an Order and continues for the term set forth in the Order (the “Subscription Term”). Thereafter, each Subscription Term automatically renews for successive periods equal to the expiring Subscription Term at the monthly rate published at the time of renewal unless one party provides the other party written notice of its intention not to renew at least thirty (30) days in advance of the applicable expiration date. This Agreement and/or a Subscription Term may be terminated by either party for a breach of this Agreement by the other party that the breaching party fails to cure to the non-breaching party’s reasonable satisfaction within thirty (30) days following its receipt of notice of the breach. Upon termination or expiration of this Agreement or a Subscription Term for any reason, all rights granted to You for the Zingle Materials shall cease and You shall immediately (a) stop accessing and using the Zingle Materials, (b) return any tangible Zingle Materials in Your possession or control to Zingle, (c) pay Zingle all amounts due and payable up to the date of termination or expiration, and (d) give Zingle a written certification, within ten (10) days, that You have complied with all of the foregoing obligations. Following the termination or expiration of this Agreement or a Subscription Term, You shall have 30 calendar days to access Your account and download/export Customer Data. Upon expiration of such 30-calendar day period, Zingle will convert Your account to an inactive status and will have no further obligation to maintain Customer Data. The Proprietary Rights, Fees, Payment and Taxes, Term and Termination, Warranties and Remedies, Indemnification, Limitation of Liability, Confidentiality and General Sections of this Agreement shall survive termination or expiration.

 

6 Warranties and Remedies

(a) Customer Warranties You represent, warrant and covenant that: (i) Customer Data will not infringe on any copyright, patent, trade secret or other proprietary right held by any third party and You own or otherwise have the right to grant the license to the Customer Data in this Agreement, (ii) You will not use the Zingle Materials in a manner that is contrary to your rights under this Agreement, that violates any law or that would reasonably be seen as obscene, defamatory, harassing, offensive or malicious, (iii) when using the Platform to send text messages, telephone messages, or email messages, You and Your employees and agents shall comply with all applicable federal, state, and local laws, regulations, and rules governing such communications, including, without limitation, the Telephone Consumer Protection Act (TCPA) and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, and state and local equivalents; and (iv) when using the Platform, You shall communicate only with individuals from whom You have the legally required consent for You to communicate using any phone number or email address provided by You to Zingle, and You shall promptly notify Zingle of all requests made by any individuals to stop receiving communications from Zingle on Your behalf., and (v) providing Zingle the Customer Data will not result in a breach of contract between You and any third party.

(b) Zingle Warranties Zingle represents and warrants that (i) it will use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for planned downtime or any unavailability caused by circumstances beyond Zingle’s reasonable control, (ii) the functionality of the Platform will not be materially decreased during a Subscription Term , and (iii) it uses appropriate physical, technical and administrative procedures to safeguard the information it collects (collectively, the “Warranties”). The Warranties shall not apply to any Platform issue (1) that Zingle cannot recreate after exercising commercially reasonable efforts to attempt to do so, (2) caused by misuse of the Platform or by using the Platform in a manner that is inconsistent with this Agreement, (3) arising after a modification or repair of the Zingle Materials by anyone other than Zingle, or (4) caused by circumstances beyond Zingle’s reasonable control, including, without limitation, misuse or negligence by You, accident, theft or unexplained loss, abuse, connections to direct current, fire, flood, wind, earthquake, acts of God or public enemy. If Zingle is required to restore the Platform to good operating condition for any of the reasons set forth in (1) – (3) above, You agree to pay for such work at Zingle’s standard hourly/material rates. Zingle grants and assigns to You the benefit of any warranties or guarantees provided to Zingle by the manufacturer of the Device to the extent is has the right to do so. It is expected that You will make all reasonable efforts to protect the Device from any damage beyond normal wear and tear, including, but not limited to, theft, tampering, water, fire, power surges, or other elements which could cause the Device to malfunction. Your sole and exclusive remedy and Zingle’s sole obligation for a breach of the Warranties shall be for Zingle to correct or provide a workaround for reproducible errors in the Platform or Device that caused the breach and/or provide a credit or refund of the fees allocable to the period during which the Platform was not available to You as warranted.

(c) Warranty Disclaimer THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES PROVIDED BY THE PARTIES HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. WITHOUT LIMITING THE FOREGOING IN THIS SECTION 7(C), (I) TEMPLATES ARE PROVIDED BY ZINGLE FOR CONVENIENCE ONLY AND YOU SHOULD CONFER WITH YOUR OWN COUNSEL AS TO WHETHER ANY LANGUAGE IN THE TEMPLATES IS SUFFICIENT FOR LEGAL PURPOSES; AND (II) YOU MAY NOT RELY UPON THE PROVISION OF SAMPLE LANGUAGE IN ANY TEMPLATE AS A REPRESENTATION THAT SUCH LANGUAGE SATISFIES ANY APPLICABLE LEGAL REQUIREMENTS.

 

Indemnification

(a) Customer Indemnification Obligations You will indemnify, defend and hold Zingle, and its subsidiaries, affiliates, officers, agents and employees (collectively, the Zingle Indemnitees”) harmless from and against any and all claims, liabilities, costs, damages, expenses and losses, including, without limitation, reasonable legal and accounting fees, arising out of any third party claim, including claims, allegations, or proceedings by Consumers or government regulators, brought against any of the Zingle Indemnitees related to (a) Your use of the Zingle Materials, (b) Your violation of this Agreement, (c) Your failure to secure any consent or provide disclosures relating to (i) Your use of the Zingle Materials, or (ii) Your or Your employees or agents use of the Platform, d) Your actual or alleged violation of the Telephone Consumer Protection Act (including with respect to messages You send via the Platform), or (e) Your violation of any rights of a third party through Your use of the Zingle Materials.

(b) Zingle Indemnification Obligations Zingle shall indemnify You from and against any claim, suit, action, or proceeding brought against You by a third party to the extent it is based on an allegation that any of the Zingle Materials directly infringe any patent, copyright, trademark, or other proprietary right enforceable in the country in which the Zingle Materials are delivered to You, or misappropriate a trade secret in such country (a “Claim”). Indemnification for a Claim shall consist of the following: Zingle shall (i) defend or settle the Claim at its own expense, (ii) pay any judgments finally awarded against You under a Claim or any amounts assessed against You in any settlements of a Claim, and (iii) reimburse You for the reasonable administrative costs or expenses, including without limitation reasonable attorneys’ fees, it necessarily incurs in responding to the Claim. Zingle shall have no obligation hereunder to defend You against any Claim (1) resulting from use of the Zingle Materials other than as authorized in this Agreement, (2) resulting from a modification of the Zingle Materials other than by Zingle, (3) based on Your use of the Zingle Materials after Zingle recommends discontinuation because of possible or actual infringement, (4) based on Your use of a superseded or altered release of the Zingle Materials if the infringement would have been avoided by use of a current or unaltered release of the Zingle Materials made available to You, or (5) to the extent the Claim arises from or is based on the use of the Zingle Materials with other products, services, or data not supplied by Zingle if the infringement would not have occurred but for such use. If, as a result of a Claim, You must stop using the Zingle Materials, Zingle shall at its expense and option either (a) obtain for Your the right to continue using the Zingle Materials, (b) replace the Zingle Materials with a functionally equivalent non-infringing product, (c) modify the Zingle Materials so that it is non-infringing, or (d) discontinue Your right to access and use the Zingle Materials and refund the unused pro-rated portion of any fees pre-paid by Your for such Zingle Materials. This Section states Zingle’s entire liability and its sole and exclusive indemnification obligations with respect to a Claim.

(c) Conditions A party’s indemnification obligations set forth above are conditioned on: (i) the party entitled to indemnification (the “Indemnified Party”) providing prompt written notice of the indemnifiable claim to the other party (the “Indemnifying Party”), provided that failure to provide prompt written notice will not relieve the Indemnifying Party of its obligations unless it is materially prejudiced by such failure, (ii) the Indemnifying Party having the right to control the defense of such claim, any related settlement negotiations, and any settlement, (iii) the Indemnified Party making no admissions in respect of such claim without the Indemnifying Party’s prior written consent, and (iv) the Indemnified Party providing to the Indemnifying Party, at the Indemnifying Party’s request and expense, the assistance, information and authority necessary to perform the Indemnifying Party’s indemnification obligations.

(d) Limitation of Liability EXCEPT FOR (A) DAMAGES RESULTING FROM A BREACH OF THE USE GUIDELINES OR Confidentiality SECTIONS OF THIS AGREEMENT, (B) a party’s indemnification obligations under this agreement, OR (C) any liability THAT cannot be excluded or limited as a matter of APPLICABLE law (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT SHALL you, ZINGLE or any AFFILIATES, subsidiaries OR SUPPLIERS of zingle BE LIABLE UNDER THIS AGREEMENT FOR any indirect, incidental, special or consequential loss or damage of any kind, including but not limited to loss of revenue, loss of actual or anticipated profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of anticipated savings, loss of, damage to or corruption of data, howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise. EXCEPT FOR THE EXCLUDED CLAIMS, The maximum aggregate and cumulative liability of YOU, ZINGLE OR ANY AFFILIATES, SUBSIDIARIES OR SUPPLIERS OF ZINGLE under this agreement, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR ZINGLE PROVIDING THE ZINGLE MATERIALS TO YOU AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR FAILURES.

 

7 Limitation of Liability

EXCEPT FOR (A) DAMAGES RESULTING FROM A BREACH OF THE USE GUIDELINES OR Confidentiality SECTIONS OF THIS AGREEMENT, (B) a party’s indemnification obligations under this agreement, OR (C) any liability THAT CANnot be excluded or limited as a matter of APPLICABLE law (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT SHALL you, ZINGLE or any AFFILIATES, subsidiaries OR SUPPLIERS of zingle BE LIABLE UNDER THIS AGREEMENT FOR any indirect, incidental, special or consequeNTIAL loss or damage of any kind, including but not limited to loss of revenue, loss of actual or anticipated profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of anticipated savings, loss of, damage to or corruption of data, howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise. EXCEPT FOR THE EXCLUDED CLAIMS, The maximum aggregate and cumulative liability of YOU, ZINGLE OR ANY AFFILIATES, SUBSIDIARIES OR SUPPLIERS OF ZINGLE under this agreement, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR ZINGLE PROVIDING THE ZINGLE MATERIALS TO YOU AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR FAILURES.

 

8 Confidentiality

As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (i) if disclosed orally is designated as confidential at the time of disclosure, (ii) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (iii) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the Zingle Materials, the Customer Data, business and marketing plans, technology and technical information, product designs, business processes, information or benchmark test results regarding the functionality and performance of the Zingle Materials, non-public financial information, and the terms and conditions of this Agreement and each Order, including pricing information. Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party, or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.

The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party’s prior written permission. Notwithstanding the foregoing, (1) the Receiving Party may disclose Confidential Information to any of its directors, officers, employees, consultants, contractors or representatives (collectively, the “Representatives”), but only to those Representatives that (i) have a “need to know” in order to carry out the purposes of this Agreement or to provide professional advice in connection with this Agreement, (ii) are legally bound to the Receiving Party to protect information such as the Confidential Information under terms at least as restrictive as those provided herein, and (iii) have been informed by the Receiving Party of the confidential nature of the Confidential Information and the requirements regarding restrictions on disclosure and use as set forth in this Section, (2) Zingle may use aggregate or anonymized information and data obtained through use of the Platform (including Customer Data) as long as Zingle does not disclose any Non-Public Personal Information or use such information or data in violation of applicable laws, (3) each party may disclose the existence and terms of this Agreement and each Order, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party, and (4) the Receiving Party may disclose Confidential Information as may be required by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.

 

9 General

(a) Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in San Diego, California. Each party hereby agrees to submit to the jurisdiction of such courts. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.

(b) Assignment You shall not, in whole or part, assign or transfer any part of this Agreement, the Zingle Materials or any other rights, interest or obligations hereunder, whether voluntarily, by contract, by operation of law, by merger, stock, asset sale or otherwise without the prior written consent of Zingle. Any attempted transfer or assignment by You that is not permitted by this Agreement shall be null and void.

(c) Export The Zingle Materials are subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the “Export Controls”). You hereby (i) agree to abide by the Export Controls with respect to Your use of the Zingle Materials, (ii) represent that You are not an entity or person to whom provision of the Zingle Materials is prohibited by the Export Controls, and (ii) agree that You will not export, re-export, sell, lease or otherwise transfer the Zingle Materials or any copy, portion or direct product of the foregoing in violation of the Export Controls.

(d) Severability If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible by law to effect the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect.

(e) Notices All notices provided hereunder shall be in writing and addressed to other party at the address as may be specified in an Order or in writing by either of the parties to the other in accordance with this Section. Notices may be delivered personally, sent via a nationally recognized courier, overnight delivery service, or email. All notices, requests, demands or communications shall be deemed effective upon delivery or, if sent by mail, four (4) days after mailing.

(f) Disclosure of Customer Status Zingle may include You in its listing of customers and, upon written consent by You, announce Your selection of Zingle in its marketing communications.

(g) Waiver Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

(h) Force Majeure Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. For added certainty, this Section shall not operate to change, delete, or modify any of the parties’ obligations under this Agreement (e.g., payment), but rather only to excuse a delay in the performance of such obligations.

(i) Headings Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”

(j) Entire Agreement This Agreement, together with the Zingle Terms of Use and Privacy Policy, is intended by the parties as a final expression of their agreement with respect to the subject matter thereof and may not be contradicted by evidence of any prior or contemporaneous agreement. To the extent there is a conflict between the Terms of Use or Privacy Policy and this Agreement, this Agreement will govern with respect to such conflict. Each party acknowledges that in entering into the Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement. In those jurisdictions where an original (non-faxed, non-electronic, or non-scanned) copy of an agreement or an original (non-electronic) signature on agreements such as this Agreement or an Order is required by law or regulation, the parties hereby agree that, notwithstanding any such law or regulation, an electronic or scanned copy of and a certified electronic signature on this Agreement or any Order shall be sufficient to create an enforceable and valid agreement. In the event of a conflict between the terms of this Agreement and the terms contained in an Order, the terms of this Agreement shall prevail unless expressly stated otherwise in such Order. Neither this Agreement, nor an Order, may be modified or amended except by a writing executed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement or an Order, including, without limitation, a purchase order.