Terms and Conditions

1. Provision of Services

1.1	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 set forth 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”).
1.2	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 agree to make payment, at the ZINFI’s prevailing rates which shall be informed to Client in advance.
1.3	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 as a result of the provision of the Services) for the purposes of providing the Services to Client.

2. Payment

2.1	In consideration of ZINFI agreeing to provide the Services, Client shall pay the amounts as set out in the Order Form in the manner and within the period prescribed for by the Order Form.
2.2	Client agrees to pay all amounts required by the Order Form free and clear of, and without any deduction in respect of any demand, set-off, counterclaim or other dispute or in respect of any withholding or other taxes or duties of any nature. If such deduction or withholding is required by law, Client shall nevertheless ensure that the amount paid and remitted to ZINFI is the amount ZINFI would have received in the absence of any such deduction or withholding.
2.3	In the event payment is not made in accordance with the Order Form, without prejudice to any other rights or remedies available to ZINFI under this Agreement or at law, in equity or otherwise, ZINFI may at its sole discretion charge Client, and Client shall pay to ZINFI, a late fee at the rate of 2% per month on any outstanding amounts payable by Client to ZINFI, until payment of the same is received by ZINFI in full.
2.4	All payments made to ZINFI by Client shall either be by ACH or telegraphic transfer to such bank account as ZINFI may designate from time to time for such purpose, or by such other means as ZINFI may hereafter prescribe.
2.5	If the details of Service are deemed in ZINFI’s sole discretion to have been changed over the course of the project, ZINFI reserves the right to re-scope and re-price the service and Client shall pay to ZINFI any additional fees that may be payable in respect of re-scoped and re-priced service.

3. Intellectual Property Rights and Confidentiality

3.1	Unless expressly stated otherwise in the Order Form, all rights, title and/or interest (including but not limited to intellectual property rights) in and to all trademarks, logos, data, information (confidential or otherwise), technology, software, code platforms (including but not limited to ZINFI’s Automated Marketing Platform), deliverables, methodologies, processes, concepts, trade secrets and know-how, and any modifications of, improvements to, or derivative works of the foregoing (collectively, “Material” or “Materials”), resulting from and/or used in providing the Services shall be retained by ZINFI. If Client come to possess any of the foregoing, Client undertake that Client shall not at any time use, disclose, publish, disseminate, modify, transfer, transmit, attempt to reverse engineer, or reproduce (collectively, “Use”), and shall take reasonable precautions to prevent any unauthorised use of, the same.
3.2	Nothing in this 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.
3.3	Where the Service includes the provision of any Materials to Client, during the term set forth in the Order Form, ZINFI grants Client a non-exclusive, revocable (at ZINFI’s sole discretion), non-transferable, licence to use such deliverables solely for the purposes of using the Services identified in the Order Form, provided that Client have fully complied with all Client payment and other obligations.
3.4	Where Client provides any Materials to ZINFI, Client will retain ownership of such Materials, but grants to ZINFI a non-exclusive licence 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 (collectively “Feedback”), shall not be considered Client Material, and ZINFI shall own such Feedback, and any improvements and/or derivative works relating to its software, processes, methodologies and/or other Materials constructed using such Feedback.  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/or interest (including but not limited to intellectual property rights) in and to Client communications with, or the Materials that Client provides to ZINFI.
3.4	Subject to Section 3.5, each party agrees to hold and not disclose any Confidential Information provided to them by the other party in strict confidence and agrees not to disclose any Confidential Information of the Disclosing Party to any third party or use any such information other than for the purpose of exercising its rights and/or carrying out is obligations in connection with this Agreement.  Confidential Information means any information disclosed by a party (“Discloser”) to the other party ("Recipient") or its agents or subcontractors, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, which includes but is not limited to, this Agreement, Personal Data, ZINFI’s pricing, software, product and technology-related information, customer lists, financial information, sales, marketing, non-public company information and activities, and business plans. Notwithstanding the foregoing, Confidential Information shall not include (1) Feedback, or (2) any information that Recipient can reasonably demonstrate  (i) was in the possession of or was rightfully known by, Recipient without an obligation to maintain its confidentiality prior to receipt from Discloser; (ii) was or has become generally available to the public other than as a result of disclosure by Recipient or its agents; or (iii) was independently developed by the Recipient or its Affiliates without use of or reference to any confidential information received from the Discloser.
3.5	Recipient may disclose Confidential Information if required by a court of competent juris diction or any governmental or regulatory authority, provided that Recipient takes reasonable efforts to limit such disclosure and to obtain confidential treatment or a protective order, notifies Discloser (where legally permissible to do so) reasonably in advance to enable Discloser to participate in such effort.
3.6	Recipient shall ensure that its employees, agents, or sub-contractors comply with this Section 3.  Recipient agrees to apply reasonable safeguards against the unauthorized disclosure of Discloser’s Confidential Information in accordance with good industry practice, or in the same manner and to the same degree that it protects its own confidential and proprietary information – whichever standard is higher.
3.7	With regards to Confidential Information provided by Discloser to Recipient prior to the execution of this Agreement, the parties shall continue to abide by the term of any confidentiality and/or non-disclosure agreement previously executed by the parties. In the event of any conflict between any such agreement and this Agreement, the terms of this Agreement and in particular this Section 3 shall control.
3.8	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 course of the Agreement.  After the expiration of that 30 day period, ZINFI will destroy and will not retain any Client Materials.  For 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, with any improvements to, modifications of and/or derivative works of ZINFI’s Materials developed using Feedback belonging solely and exclusively to ZINFI.

4. Representations and Warranties

4.1	Client represents and warrants that:
	4.1.1 It has acquired and will maintain throughout the term of this Agreement any and all approvals, rights, consents, authorisations, permissions or licences as may be required: (i) to enter into, and carry out its obligations under, this Agreement; (ii) for ZINFI to provide the Services to the Client, including use of third-party materials; or (iii) 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, and Client shall not do or fail to do anything which would be in violation of or infringe any of the terms of such approval, right, consent, authorisation, permission or licence; 4.1.2 Client shall provide ZINFI with access to, and the right to use, disclose, publish, disseminate, modify, transfer, transmit or reproduce, such material as may be required by ZINFI to perform its obligations under this Agreement or as may from time to time be requested by ZINFI. 4.1.3 All material that Client have provided to ZINFI: (i) at all times contains only material which is truthful, accurate, complete and not misleading; (ii) complies at all times with all, and is not in breach of and does not infringe any, applicable laws; (iii) where applicable, complies with the technical standards and specifications as may be prescribed by ZINFI from time to time; (iv) does not contain any obscene, offensive, defamatory or otherwise actionable material; and (v) will not cause any disruption or damage to any computer or telecommunications systems, networks or equipment, or undermine the security or integrity of the same.
4.2	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, in relation to the provision of the Services or the performance of any of its obligations under this Agreement or any Material or deliverables provided to Client.

5. Indemnity and Liability

5.1	Except for intellectual property infringement and/or breaches of Sections  2-4 or 5.3, in no event will either party or their Affiliates have any liability arising out of or related to the Agreement for any lost profits, revenue, goodwill, or indirect, special, incidental, consequential, business interruption or punitive damages, whether an action is in contract or tort and regardless of theory of liability, even if a party or its Affiliates have been advised of the possibility of such damages or if ap arty or its Affiliates.  The foregoing disclaimer will not apply to the extent prohibited by law.
5.2	Except for intellectual property infringement and/or breaches of Sections 2-4 and 5.3,  each parties’ liability (whether in contract or tort) to the other under this Agreement and/or in relation to any of the Services provided herein, shall in no event  exceed the total fees paid by Client under this Agreement.  The foregoing limitation will not apply to the extent prohibited by law.
5.3	Client shall indemnify and hold harmless ZINFI (including its holding companies, subsidiaries, directors, officers, agents and employees) from any and all third party claims made against the same, or any cost, loss, expense and damages (collectively, “Loss”) arising from or in connection with any act or omission by Client, or any breach by Client of any representation, warranty, guarantee or undertaking under this Agreement, except for such where such Loss is due to ZINFI’s wilful breach of this Agreement.  ZINFI shall indemnify and hold harmless Client (including its holding companies, subsidiaries, directors, officers, agents and employees) from any and all third party claims made against the same, or any cost, loss, expense and damages (collectively, “Loss”) arising from or in connection with any act or omission by ZINFI during the course of ZINFI’s performance of this Agreement, except for such where such Loss is due to Client’s wilful breach of this Agreement.

6. Termination

6.1	Notwithstanding the Term set forth in the Order Form, ZINFI may suspend the provision of the Services to Client, or terminate this Agreement immediately if:
	6.1.1 Client does not pay any amount due and payable by Client to ZINFI within 14 days after the due date of such amount; 6.1.2 Client becomes bankrupt or insolvent; or 6.1.3 Client has, committed a material breach of any of the terms of this Agreement.
6.2	ZINFI may, on and at any time after the date of termination of this Agreement, by written notice to Client, claim all or any part of the amounts due, together with any accrued interest, and all other amounts accrued or outstanding under this Agreement, be immediately payable to ZINFI, whereupon they shall become immediately due and payable.
6.3	ZINFI’s right to suspend the provision of Services or terminate this Agreement under this Clause 6 shall be without prejudice to any other rights or remedies which ZINFI may have at law, in equity or under any agreement (including but not limited to this Agreement).

7. General

7.1	The Agreement (including all documents referenced therein) constitutes the entire agreement between Client and ZINFI regarding Client’s use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral concerning its subject matter.  In the event of conflict or any consistency among any of the following documents, the order of precedence shall be (1) the application Order Form (and any amendment thereto with the most recent Amendment having precedence in the event of conflict), (2) these Terms and Conditions, and (3) any documents referenced in these Terms and Conditions.
7.2	From time-to-time ZINFI  may choose, in its sole discretion, to perform portal satisfaction surveys and outreach to our clients’ registered partner community. Our feedback efforts provide actionable insights related to customer satisfaction, platform optimization, and quality assurance.   So long as Client’s registered partners do not request that the information conveyed to ZINFI be kept confidential, upon written request by Client, results can be made available to the Client whose partner community is surveyed.  While such information, if gathered, may be shared with Client consistent with this paragraph, nothing set forth herein shall be construed to impose any requirement on ZINFI to conduct such surveys and outreach, or impose any requirement that such outreach and/or surveys be conducted with any certain frequency.  Nor shall anything in this Section 7.1 confer any intellectual property rights on Client, with ZINFI retaining ownership of all feedback.
7.3	ZINFI shall not be liable to Client by 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 ZINFI is unable to prevent or avoid, including but not limited to any failure and/or delay caused by a pandemic or other force majeure event, including but not limited to any failure and/or delay caused by a pandemic or other force majeure event.
7.4	The parties are independent contractors.  This Agreement does not create a partnership franchise, joint venture, agency, fiduciary relationship between the parties.  Each party will be solely responsible for payment of all compensation owed to its employees as well as all employment related taxes.
7.5	There are no third-party beneficiaries to the Agreement.
7.6	No failure to exercise or enforce, and no delay on the part of ZINFI 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 ZINFI at any time thereafter to act strictly in accordance with its rights and powers under this Agreement.
7.7	Client shall not assign, transfer or encumber any or all of its rights, interests and obligations under this Agreement without ZINFI’s prior written consent. ZINFI may assign, transfer or encumber any or all of its rights, interests and obligations under this Agreement to or in favour of any affiliate, agent or third party without Client prior written consent.
7.8	This Agreement, together with any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in accordance with the laws of United States of America and by the laws of the State of California.  Any dispute arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration in the state of California, United States of America in accordance with the JAMS Arbitration Rules for the time-being in force, which rules are deemed to be incorporated by reference in this clause
7.9	The Parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney’s fees (as provided by Section 7.10 below or otherwise), even if they would otherwise be available to that party in any such action.  EXCLUSIONS FROM MEDIATION AND ARBITRATION:  Any matter which is within the jurisdiction of a probate, small claims, or bankruptcy court is excluded from the mediation and arbitration requirement set forth in this Section and Section 7.8 above.  In addition, the filing of a court action for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a violation of the mediation and/or arbitration provisions.
7.10	Subject to the provisions of Section 7.9, in the event of any dispute regarding the terms of this Agreement and/or any action (including but not limited to an any arbitration pursuant to Section 7.8) to recover any amounts owed under this Agreement,  the prevailing party shall be entitled to collect from the other party all reasonable attorneys’ fees and costs incurred related to such dispute and/or action.
7.11	The Services may be subject to export laws and/or regulations of the United States and other jurisdictions.  Client and ZINFI each represent that it is not on any United States government denied-party list.  Client will not permit any user to access or use any service in a United States embargoed country or region or in violation of United States export law or regulation.
7.12	Both parties represent and warrant that they have not received or been offered any illegal or improper bribe, kickback, payment or gift or thing of value from an employee or agent of the other party in connection with this Agreement.  Reasonable gifts and entertainment provided in the ordinary course of business to no violate the above restriction.
7.13	Except as otherwise provided herein, all notices related to this Agreement must be in writing to the address specific in the Order Form and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii) except for notices of termination or an indemnifiable claim (collectively” Legal Notices”) which shall be identifiable as Legal Notices, the day of sending an email.  Billing related notices to Client will be addressed to the relevant billing Accounts Payable contact designated by Client on the Order Form.   Any Legal Notice shall be personally delivered and/or sent via mail, with a copy of such notice also sent to the Legal Notice email address identified on the Order Form.
7.14	Sections 2, 3, 5 and 7 shall survive any termination and/or expiration of this Agreement.  the provision of the Services, or Client relationship with ZINFI.

Exhibit A – UPM Portal Administration Descriptions

The following is a list of all the modules and features that ZINFI provides in its Unified Partner Management (UPM) platform.  The Client’s Order Form clearly defines which of these modules are going to be active as a part of its Subscription
Applications Overview:

Exhibit A Continued –

Onboard Applications

Applications Overview

Enable Applications

Applications Overview:

Market Applications

Applications Overview

Sell Applications

Applications Overview

Incentivize Applications

Applications Overview

Accelerate Applications

Applications Overview

Add-On Applications

Applications Overview

The Client’s Order Form clearly defines which of these modules are going to be active as a part of the Client’s Subscription

Exhibit B – UPM Platform Setup & Ongoing Support

The following is a list of activities that ZINFI would carry out to train Client for setting up ZINFI’s Unified Partner Management (UPM) platform for Client’s business.

Once the UPM portal has been set up, ZINFI will be providing ongoing support to Client. The following table describes in detail the nature of support that will be provided by ZINFI’s Program Management team members.

Once the UPM portal has been launched, ZINFI will be providing ongoing support to Client’s partners. The following table describes in detail the nature of support that will be provided by ZINFI’s Technical Support team members.

Exhibit C – Licensing Definitions (Partner Bands)

The following section describes in detail ZINFI’s UPM SaaS licensing structure:

*Definition of the word “Partners” in “Partner Bands” related to any license band is defined as follows:
The word “Partners” refers to unique partner accounts (UPA). Each UPA is determined by their email domain, e.g., @partner.com and each UPA can have unlimited users under that email domain of @partner.com. However, if a Client has licensed up to a certain partner band then at any moment the total number of UPAs having “access rights” to the Portal on an annual basis cannot exceed the licensed partner band. ZINFI will notify the Client on a monthly basis the total UPAs that have access right to the Portal, and Client has the right to remove access of any UPA to keep the total UPAs accessing the Portal and stay within the licensed band.

Important Notes:

• Clarification – If a Client has licensed up to 100 Partners band and assigned access rights to 100 UPAs then for licensing purposes, ZINFI would consider all 100 UPAs have access rights, independent of the fact a great portion of them may not ever access the Portal at all. Client will have to manage this access right proactively to make sure at any time no more than 100 UPAs have access to the Portal under the “100 Partners” licensed band. Client does have the right to replace one UPA with another UPA to remain within the 100 UPA limit in this case.

• Upgrade to the next partner band can be done by signing an addendum to this the Agreement.. Both parties must agree in writing for such increase.

• For example – if the total number of UPAs who need to access the Portal during the term of this agreement exceed from 100 partners to 101 partners then both parties must sign an addendum in upgrading the license band from 100 to the next available license band, for example 250, or to another authorized level
• Downgrade to a lower partner band is not available during the term of this agreement.

To understand the actual license numbers, we will follow up with the table provided below:

For further details, please refer to the License Management document.

Exhibit D – Data Processing Agreement

The parties’ processing of Personal Data under this Agreement shall be governed by ZINFI’s data processing agreement (“DPA”) agreement with regard to the Processing of Personal Data made available at DPA document.

By signing the Agreement, Client enters into this DPA on behalf of itself and, to the extent required under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent ZINFI processes Personal Data for which such Authorized Affiliates qualify as the Controller. For the purposes of the DPA only, and except where indicated otherwise, the term “Client” shall include Client and Authorized Affiliates. The term of this DPA will follow the term of the Agreement.  All capitalized terms not defined in the DPA shall have the meaning set forth in the Agreement.

Exhibit E- Service Level Agreement

Service Level Agreement (SLA):

ZINFI’s SaaS application is provided as-is and no warranties above and beyond uptime will be provided. As a part of uptime warranty, ZINFI will provide an hourly credit for every hour ZINFI’s system is fatally impaired and not available to deliver its SaaS services to all users. In such cases and hourly credit note calculated and provided to Clients as follows:

• Total Hourly Credit Amount = Total Annual SaaS Subscription Contract Value ($**** / (365 days x 24 hours per day)), i.e.   $*** per hour
• Client can apply credit notes to any future professional service invoices”
• For further details, please refer to the SLA document.

Note: ZINFI to securely delete client data and/or return it upon termination of this Agreement.

Exhibit F– Details of Billable & Non-billable Activities

Billable and Non-Billable Activities – ZINFI has numbers of activities related to professional services by multiple functions. ZINFI tracks the hours for every activity and will charge Client as per billable hours.

If Client buys out annual support hours or any bulk pro-pack hours, ZINFI will track the billable hours against those pre-purchased hours and sends a detailed monthly report to Client on utilization of those hours. Once Client utilizes all the pre-purchased hours, Client must need to buy any pro-pack hours and pay out ZINFI on a monthly basis as per utilized hours over pre-purchased hours if Client seeks the support of ZINFI professional service team.

For further details, please refer to the Billable & Non-Billable document.