UPM – Terms of Use

Provision of Services

By signing the Order Form (“Order Form”), Client engages ZINFI to provide to Client the services as set out in the Order Form (“Services”) during the Term outlined in the Order Form, subject to the terms set out in the Order Form and these terms and conditions, including the terms and conditions included in Exhibits A-F (collectively, the “Agreement”).

Where ZINFI provides to Client any services in addition to the Services (if instructed, directed, or requested by Client and agreed to by ZINFI in writing), ZINFI shall charge for the same, and Client agrees to make payment at ZINFI’s prevailing rates which shall be informed to Client in advance.

Client hereby grants consent and authorizes ZINFI and its related corporations to collect, use, and disclose any information in relation to Client (and all other information which ZINFI may obtain because of the provision of the Services) to provide the Services to Client.

Intellectual property Rights and Confidentiality

Unless expressly stated otherwise in the Order Form, all rights, title, and interest (including but not limited to intellectual property rights) in and to all trademarks, logos, data, information (confidential or otherwise), technology, platforms (including but not limited to ZINFI’s Automated Marketing Platform), deliverables, methodologies, processes, concepts, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing (collectively, “Material”), resulting from or used in providing the Services shall be retained by ZINFI. If Client comes to possess any of the foregoing, Client undertakes that Client shall not at any time use, disclose, publish, disseminate, modify, transfer, transmit, or reproduce (collectively, “Use”) and shall take reasonable precautions to prevent any unauthorized use of, the same.

Nothing in the Agreement shall or shall be considered to, grant Client any right to use the ZINFI name or any trademarks, trade names, logos, service marks, or Material belonging to ZINFI without the prior written consent of ZINFI.

Where the Service includes the provision of any Materials to Client during the term outlined in the Order Form, ZINFI grants Client a non-exclusive, revocable (at ZINFI’s sole discretion), non-transferable, license to use such deliverables solely to provide the Services identified in the Order Form, if Client has fully complied with all Client payment and other obligations.

Where Client provides any Materials to ZINFI, Client will retain ownership of such Materials but grants ZINFI a non-exclusive license to use such Materials solely for the purposes identified in the Agreement. Notwithstanding any of the foregoing, any input and/or feedback provided by Client to ZINFI regarding ZINFI’s software, methodologies, processes, or other ZINFI Materials (“Feedback”), shall not be considered Client Material, and ZINFI shall own any improvements and/or derivative works relating to its software, processes, methodologies and/or other Materials constructed using such feedback and/or input from Client. Unless ZINFI uses Client communications or Materials in violation of this Agreement, Client agrees that it shall have no recourse against ZINFI for any alleged or actual infringement or misappropriation of any rights, title, and interest (including but not limited to intellectual property rights) in and to Client communications with, or the Materials that Client provides to ZINFI.

Upon termination of the Agreement, ZINFI shall provide Administrative Access to Client for 30 days post termination solely for the purpose of downloading any Client Materials that Client provided to ZINFI during the Agreement. After the expiration of that 30-day period, ZINFI will destroy and will not retain any Client Materials. For the sake of clarity, any feedback and/or input that Client has provided regarding ZINFI’s software, methodologies, processes, or other ZINFI Materials are not considered Client Materials and may be retained and used by ZINFI in its sole discretion.

Representations and Warranties

Client represents and warrants that:

• It has acquired and will maintain throughout the term of this Agreement all approvals, rights, consents, authorizations, permissions or licenses as may be required:
• to enter and carry out its obligations under the Agreement.
• for ZINFI to provide the Services to the Client, including the use of third-party materials; or
• under any applicable laws, regulatory requirements, codes, or other regulations, or any policies or guidelines as may be implemented from time to time by ZINFI,

ZINFI always represents and warrants that:

• it has and will maintain all rights and authority necessary to enter into this Agreement and to perform its obligations under this Agreement.
• ZINFI’s execution of this Agreement and the performance of its obligations hereunder do not and will not violate any agreement to which it is a party or by which it is otherwise bound.
• The services contained herein shall be provided in a workmanlike and professional manner.
• ZINFI will maintain appropriate administrative, physical, technical, and organizational measures that provide an appropriate level of security for Confidential Information and any personally identifiable information received from the Client.
• it has and will maintain throughout the term of this Agreement and any SOW, any applicable licenses, permits, approvals, and consents required by any federal, state, or local licensing, regulatory, or other agency for the performance of Services to be provided under this Agreement; and
• it will comply with any local, state, national, and/or foreign laws, treaties, and/or regulations applicable to the respective party (collectively, “Laws”) applicable in performing its obligations under this Agreement as well as the Data Protection Addendum executed between the parties.

ZINFI makes no express or implied representation, warranty, guarantee, or undertaking (whether under this Agreement, implied by law or otherwise) and expressly disclaims any express or implied representation, warranty, guarantee, or undertaking about the provision of the Services or the performance of any of its obligations under this Agreement or any Material or deliverables provided to Client.

Indemnity and Liability

Except for infringement of Intellectual Property Rights, a party’s indemnification (Section 5), confidentiality (Section 6), or data protection obligations (DPA attached hereto), each party’s liability (whether in contract or tort) to the other under this Agreement and about any of the Services provided herein, shall in no event exceed the total fees paid or owing by Client under this Agreement, whichever is greater.

Client shall indemnify and hold harmless ZINFI (including its holding companies, subsidiaries, directors, officers, agents and employees) from all third party claims made against the same, or any cost, loss, expense and damages (collectively, “Loss”) arising from or related to any third party claim against ZINFI based on any (i) fraud, gross negligence, and willful misconduct by Client in the performance of its obligations under this Agreement, (ii) any breach of any representation or warranty made under this Agreement, and (iii) any Client Materials that infringe the Intellectual Property Rights of any third party (as defined below).

ZINFI shall indemnify and hold harmless Client (including its holding companies, subsidiaries, directors, officers, agents and employees) from any third party claims made against the same, or any cost, loss, expense and damages (collectively, “Loss”) arising from or in connection with (i) any gross negligence, willful misconduct or fraud in the performance of its obligations under this Agreement, (ii) any breach of the representations and warranties outlined in this Agreement, or (iii) use of the Service in accordance with the Agreement infringes a third party’s unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world (collectively, “Intellectual Property Rights”).

This Clause shall survive any termination of this Agreement, the provision of the Services, or the Client’s relationship with ZINFI.

Confidentiality

It may be necessary for a party during the term of this Agreement to provide the other party with certain information that shall be Confidential Information. “Confidential Information” shall include any information disclosed by either party, either directly or indirectly, orally or in writing, or by inspection of tangible objects that the disclosing party identifies as confidential or proprietary or that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information shall not include any information that: (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of this Agreement by the receiving party; (ii) was rightfully acquired by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iii) is rightfully obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. The receiving party may only use the disclosing party’s Confidential Information in connection with the performance of its obligations under this Agreement and shall use reasonable care to protect such Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but in no event less than a reasonable degree of care. The receiving party will not disclose any of the disclosing party’s Confidential Information to employees or any third parties except: (a) to the receiving party’s employees, contractors, and agents who have a need to know such information in connection with the performance of its obligations under this Agreement and have agreed to abide by nondisclosure terms at least as protective of the disclosing party’s Confidential Information as those set forth herein; and (b) if required by law or a valid and effective subpoena or order issued by a court of competent jurisdiction or a governmental body. In the event the receiving party is required by law or a valid and effective subpoena or order issued by either a court of competent jurisdiction or a governmental body to disclose any of the disclosing party’s Confidential Information, the receiving party shall promptly notify the disclosing party in writing of the existence, terms, and circumstances surrounding such required disclosure so that the disclosing party may seek a protective order or other appropriate relief from the proper authority. The receiving party shall cooperate with the disclosing party in seeking such order or other relief. Suppose the receiving party is nonetheless required to disclose the disclosing party’s Confidential Information. In that case, it will furnish only that portion of the Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that such Confidential Information will be treated confidentially to the extent possible. Notwithstanding termination or expiration of this Agreement, the obligations set forth herein concerning the disclosing party’s Confidential Information shall be protected until such information is no longer Confidential. All documents and other tangible objects containing or representing the disclosing party’s Confidential Information and all copies thereof that are in the possession of the receiving party shall be promptly destroyed or returned to the disclosing party upon the disclosing party’s request, provided that the receiving party shall have the right to retain copies of Confidential Information for regulatory compliance or legal purposes and that such copy shall remain confidential under the terms of this Agreement. Notwithstanding any of the preceding, Feedback shall not be considered Client Confidential Information, and the restrictions set forth herein shall not apply to ZINFI’s use of any Feedback from Client.

Each party acknowledges that a breach by the other party of any confidentiality provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the non-breaching party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the non-breaching party shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages or posting bond.

Termination

Notwithstanding the Term outlined in the Order Form, the Agreement may be terminated (i) by ZINFI upon written notice if Client fails to pay any amount due within 14 days of written notice of Client’s failure to make payment as required, (ii) by either party, upon written notice in the event of a material breach of the Agreement which, if capable of cure, is uncured thirty (30) days after receipt of written notice; (iii) by either party if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

If ZINFI has the right to terminate under this provision, it may also, in its sole discretion, choose to suspend the provision of Services to Client in lieu of termination.

Suppose ZINFI terminates the Agreement pursuant to the provisions outlined in this Section. In that case, Client shall pay the Professional Services fees due as of the date of Termination and Subscription Fees for the remainder of the original Term of the Agreement.

Should Client terminate this Agreement under the provisions set forth herein, ZINFI shall refund Client any prepaid Professional Service fees for any Professional Services not yet provided.

General

Neither party shall not be liable to the other party for reason of any delay in performing, or any failure to perform, any of the Services or to discharge any of its obligations if the delay or failure was caused by any event or circumstance the occurrence of which a party is unable to prevent or avoid, including but not limited to any failure and delay caused by a pandemic or other force majeure event, including but not limited to any failure and delay caused by a pandemic or other force majeure event.

No failure to exercise or enforce, and no delay by a party in exercising or enforcing, any of its rights under this Agreement shall operate as a waiver thereof, nor shall such failure or delay in any way prejudice or affect the right of such party at any time after that to act strictly in accordance with its rights and powers under this Agreement.

Neither party shall assign, transfer, or encumber any or all of its rights, interests, and obligations under this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed.

The parties shall always and for all purposes be deemed independent contractors, and neither party nor either party’s employees, representatives, joint venturers, partners, subcontractors, or agents shall have the right or power to bind the other party. This Agreement shall not create or be deemed to create a joint venture, partnership, or similar association between the parties or either party’s employees, subcontractors, or agents.

ZINFI may not use Client’s name, logo, and marks to identify Client as a customer on ZINFI’s website, press release, or any other marketing materials, unless Client has provided its express, prior written consent.

The Agreement, together with any non-contractual obligations arising out of or in connection with it, shall be governed by and construed by the laws of the United States of America and the laws of the State of California.

The prevailing party shall be entitled to collect all reasonable attorneys’ fees and costs incurred related to such dispute and action from the other party.