"Customer" means any entity or individual other than Ziggeo (and its successors or assigns) who accesses or uses the Ziggeo Services.
"Customer Application" means any software or application other than the Ziggeo Services that interfaces with the Ziggeo Services and includes any services (web-based or other services) or other applications made available by Customer through that software or application.
"Customer Data" means all data text, video, audio clips, photographs, written posts and comments, software, scripts, graphics and interactive features and other information (collectively, "Content") added, created, uploaded, submitted, distributed or posted to the Ziggeo Services by Customer or End Users, including but not limited to video records, video message content and Customer Applications and any tags or metadata added, created, uploaded, submitted, distributed or posted to the Ziggeo Services by Customer or End Users. For the avoidance of doubt, Customer Data does not include any Ziggeo Services, including without limitation the Site, the Ziggeo APIs and Documentation.
"Documentation" means all of the instructions, demonstrations of Ziggeo Services, code samples, the Ziggeo markup language, on-line help files and technical documentation made available by Ziggeo for the Ziggeo Services.
"Emergency Services" means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services.
"End User" means an end user of a Customer Application.
"Rate Schedule" means the schedule of fees located at /pricing, as such may be updated from time to time. "Ziggeo API" means an application programming interface for the Ziggeo Services (or feature of the Ziggeo Services) provided to Customer by Ziggeo.
"Ziggeo Services" means the services provided by Ziggeo, including the Site, all programs, features, functions, applications, report formats, the Ziggeo APIs, any other software, Documentation, technical support and all Content (including any tags, metadata or analyses generated by Ziggeo or the Ziggeo Services) included in any of the foregoing other than Customer Data, and any updates or upgrades of any of the foregoing.
Subject to the terms and conditions and solely during the term of this Agreement, Ziggeo grants to Customer a non-exclusive, revocable, non-sublicensable (subject to Section 2.1(b) below) and nontransferable license to:
(a) Use the Documentation and Ziggeo APIs as needed to develop Customer Applications;
(b) Offer and make the Ziggeo Services available to End Users solely in connection with the use of each Customer Application, in accordance with the Documentation, including the right to charge fees to End Users for use of or access to such Customer Applications. Customer may not offer the Ziggeo Services on a standalone basis or for any other purpose other than in connection with Customer Applications; and
(c) Otherwise use the Ziggeo Services solely in connection with and as necessary for Customer's permitted activities here under.
By submitting Customer Data through the Ziggeo Services, Customer hereby does and shall grant Ziggeo a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, reproduce, distribute, edit, modify, display and perform the Customer Data in connection with the Site, the Ziggeo Services and Ziggeo’s (and Ziggeo’s successors’ and assigns’) internal business purposes. For clarity, the foregoing license grant to Ziggeo does not affect Customer’s other ownership or license rights in Customer Data, including the right to grant additional licenses to Customer Data, unless otherwise agreed in writing. Customer represents and warrants that Customer has all rights to grant such license to Ziggeo without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, rights to likeness, copyrights, trademarks, contract rights or any other intellectual property, proprietary or similar rights. Notwithstanding the foregoing, Ziggeo shall have the right to compile, use, distribute, copy, incorporate, report on, create derivatives of and otherwise benefit from Anonymized Data for Ziggeo’s business purposes, including but not limited to assessing the the operation and organizational effectiveness of the Services (including benchmarking, performance and usage), for use in Ziggeo’s existing or future products or services and marketing, internal or external reporting and/or management purposes. “Anonymized Data” means data submitted to or collected or generated by Ziggeo in connection with Customer’s use of the Services, but only in anonymized and/or aggregate form that is not linked specifically to Customer.
Ziggeo will use commercially reasonable efforts to store and to prevent damage to or loss of Customer Data. Ziggeo reserves the right to, but does not have any obligation to, remove or block any Customer Data in Ziggeo’s sole discretion, at any time, without notice to Customer and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Customer Data so that e.g. Ziggeo may comply with applicable law or if Ziggeo is concerned that Customer may have violated this Agreement). Notwithstanding the foregoing, so long as Customer Data is accessible by Customer through the Ziggeo Services, Ziggeo will use commercially reasonable efforts to make that Customer Data available for download by Customer from the Ziggeo Services in industry standard format. In the event that Ziggeo or substantially all of Ziggeo’s assets are acquired or Ziggeo goes out of business or experiences a bankruptcy event, Ziggeo will use commercially reasonable efforts to make all Customer Data that is accessible by Customer through the Ziggeo Services as in existence at the time of such event available to Customer for download from the Ziggeo Services in industry standard format.
Customer will be solely responsible for all use (whether or not authorized) of the Ziggeo Services under its account, including for the quality and integrity of Customer Data and each Customer Application. Customer will ensure that it has a written agreement with each End User (each, an "End User Agreement") that protects Ziggeo's rights to the same extent as the terms of this Agreement, including without limitation terms concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. Ziggeo agrees that, subject to the foregoing requirements, the End User Agreement need not specifically refer to Ziggeo. Customer will promptly notify Ziggeo if it becomes aware of any breach of the terms of the End User Agreement that may affect Ziggeo. Customer will take all reasonable precautions to prevent unauthorized access to or use of the Ziggeo Services and notify Ziggeo promptly of any such unauthorized access or use.
Except as expressly provided in Section 2.1 (Provision of Ziggeo Services), Customer will not transfer, resell, lease, license or otherwise make available the Ziggeo Services to third parties. In any event, Customer will not offer the Ziggeo Services on a standalone basis. Customer will not use the Ziggeo Services to access or allow access to Emergency Services. Customer will ensure that the Ziggeo Services provided hereunder are used in accordance with all applicable laws, regulations and third-party rights, as well as the terms of this Agreement, including Ziggeo's Acceptable Use Policy. Specifically and without limitation, Customer will ensure that Ziggeo has sufficient rights to use the Customer Data as needed to provide the Ziggeo Services and will not use the Ziggeo Services in any manner that violates any data protection statute, regulation, order or similar law. Except as allowed by applicable law, with respect to any software included in the Ziggeo Services, Customer will not reverse engineer, de-compile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of such software. Please also see Ziggeo’s Acceptable Use Policy at https://ziggeo.com/aup.
Customer acknowledges that the features and functions of the Ziggeo Services, including the Ziggeo APIs, may change over time. It is Customer's responsibility to ensure that calls or requests Customer makes to the Ziggeo Services are compatible with then-current Ziggeo APIs. Although Ziggeo endeavors to avoid changes to the Ziggeo APIs that are not backwards compatible, if any such changes become necessary Ziggeo will use reasonable efforts to notify Customer at least 60 days prior to implementation.
The Ziggeo Services may permit Customer to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Ziggeo Services. When Customer accesses third-party resources on the Internet, Customer does so at Customer’s own risk. These other resources are not under Ziggeo’s control, and Customer acknowledges that Ziggeo is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply Ziggeo’s endorsement or any association between Ziggeo and their operators. Customer further acknowledges and agrees that Ziggeo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
Customer agrees to pay the usage fees and any other amounts set forth in the Rate Schedule or as otherwise agreed to by Customer through the Ziggeo Services, including on subscription basis, as paid monthly or annually, as applicable. In the event the cost of Customer’s usage of the Services exceeds the monthly commitment, Customer shall pay Ziggeo fees additional to the foregoing monthly commitment for the remainder of such month. Any overages incurred by Customer shall be payable on the 1st day of the following month. Notwithstanding the foregoing, any fees paid on an annual basis shall be accounted as if paid on a monthly basis. In addition, if applicable, Customer agrees to pay any applicable support fees in connection with Customer's order of any support services. Any payment terms presented to Customer in the process of using or signing up for any Ziggeo Services are deemed part of this Agreement.
Unless otherwise stated in the Rate Schedule, all applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges or other similar taxes, license fees and surcharges, whether charged to or against Ziggeo, will be payable by Customer. Customer will not withhold any taxes from any amounts due to Ziggeo.
Ziggeo will invoice Customer in accordance with the Rate Schedule or as otherwise agreed to by Customer through the Ziggeo Services. If Customer is overdue on any payment and fails to cure such non-payment within 10 days of written notice of the non-payment, then Ziggeo may assess, and Customer will pay, a late fee of the lesser of 1% per month or the maximum amount allowable by law.
3.4 Payment Processor. Ziggeo uses a third-party payment processor (the "Payment Processor") to bill Customer through a payment account linked to Customer’s account on the Ziggeo Services (Customer’s "Billing Account") for use of the Ziggeo Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Ziggeo is not responsible for error by the Payment Processor. By choosing to use Ziggeo Services, Customer agrees to pay Ziggeo, through the Payment Processor, all charges at the prices then in effect for any use of such Ziggeo Services in accordance with the applicable payment terms (including but not limited to those set forth in the Rate Schedule), and Customer authorizes Ziggeo, through the Payment Processor, to charge Customer’s chosen payment provider (Customer’s "Payment Method"). Customer agrees to make payment using that selected Payment Method. Ziggeo reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
3.5 Payment Method. The terms of Customer’s payment will be based on Customer’s Payment Method and may be determined by agreements between Customer and the financial institution, credit card issuer or other provider of Customer’s chosen Payment Method. If Ziggeo, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all amounts due on Customer’s Billing Account upon demand.
3.6 Recurring Billing. The Ziggeo Services are provided subject to recurring period charges and other fees and amounts as agreed to by Customer. By choosing a recurring payment plan, Customer acknowledges that such Ziggeo Services have a recurring payment feature and accepts responsibility for all recurring charges prior to cancellation. ZIGGEO MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY ZIGGEO) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE CUSTOMER’S PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE ZIGGEO REASONABLY COULD ACT. TO TERMINATE CUSTOMER’S AUTHORIZATION OR CHANGE CUSTOMER’S PAYMENT METHOD, GO TO https://ziggeo.com/signin.
3.7 Current Information Required. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR CUSTOMER’S BILLING ACCOUNT. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP CUSTOMER’S BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY ZIGGEO OR ZIGGEO’S PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT https://ziggeo.com/signin. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT ZIGGEO MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF APPLICABLE ZIGGEO SERVICES UNDER CUSTOMER’S BILLING ACCOUNT UNLESS CUSTOMER HAS TERMINATED CUSTOMER’S APPLICABLE ZIGGEO SERVICES AS SET FORTH ABOVE.
3.8 Change in Amount Authorized. If the amount to be charged to Customer’s Billing Account varies from the amount Customer pre-authorized (other than due to the imposition or change in the amount of state sales taxes), Customer has the right to receive, and Ziggeo shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement Customer has with Customer’s payment provider will govern Customer’s use of Customer’s Payment Method. Customer agrees that Ziggeo may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
3.9 Auto-Renewal for Subscription Services. Unless Customer opts out of auto-renewal, which can be done by submitting a request to Ziggeo at , any subscription-based Ziggeo Services Customer has signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign subscription-based Ziggeo Services at any time, go to https://ziggeo.com/signin. If Customer terminates a subscription-based Ziggeo Service, Customer may use Customer’s subscription until the end of Customer’s then-current term; Customer’s subscription will not be renewed after Customer’s then-current term expires. However, Customer won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
3.10 Reaffirmation of Authorization. Customer’s non-termination or continued use of a Ziggeo Service subject to the usage fees set forth on the Rate Schedule or other fees or amounts as otherwise agreed to by Customer through the Ziggeo Services reaffirms that Ziggeo is authorized to charge Customer’s Payment Method for that Paid Service. Ziggeo may submit those charges for payment, and Customer will be responsible for such charges. This does not waive Ziggeo’s right to seek payment directly from Customer. Customer’s charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use such Ziggeo Services.
3.11 Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Ziggeo Services otherwise subject to usage fees set forth on the Rate Schedule or otherwise through the Ziggeo Services must be used within the specified time of the trial. Customer must stop using such Ziggeo Services before the end of the trial period in order to avoid being charged for such Ziggeo Services. If Customer cancels prior to the end of the trial period and is inadvertently charged for such Ziggeo Services, please contact Ziggeo at .
3.12 Disputes. Customer will notify Ziggeo in writing in the event Customer disputes any portion of any fees paid or payable by Customer under this Agreement. Customer will provide such notice to Ziggeo within 60 days of the applicable charge and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the 60-day period described in this Section, Customer will not be entitled to dispute any fees paid or payable by Customer.
3.13 Suspension. Customer acknowledges that, in the event Customer's usage exceeds the amounts prepaid by Customer or any other failure to pay amounts due as described in this Section 3, Ziggeo will be entitled suspend the Ziggeo Services associated with Customer's account without prior notice to Customer. Ziggeo will not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to any suspension of Ziggeo Services pursuant to this Section.
As between the parties, Ziggeo exclusively owns and reserves all right, title and interest in and to the Ziggeo Services and Ziggeo's Confidential Information (as defined below), in any medium now or later existing, including without limitation any Intellectual Property Rights therein or related thereto. As between the parties, Customer exclusively owns and reserves all right, title and interest in and to the Customer Data, Customer Applications and Customer's Confidential Information, including any Intellectual Property Rights therein. "Intellectual Property Rights" means any intellectual property or proprietary or similar rights worldwide, whether registered or unregistered and whether currently or not yet in existence. Ziggeo reserves all rights in and to the Ziggeo Services (and any Intellectual Property Rights therein or related thereto) not expressly granted in this Agreement, and nothing contained in this Agreement shall be construed as conferring any grant or license of any right by implication, estoppel or otherwise other than the rights expressly granted by Ziggeo herein.
Subject to the terms of this Agreement, each party (the "Licensor") grants to the other party (the "Licensee") the right to use and display Licensor's name and marks (the "Licensor Marks") on its website and in other promotional materials solely in connection with its activities under this Agreement. All such use of the Licensor Marks will be in accordance with the Licensor's usage guidelines and will inure to the benefit of Licensor. Licensee will not use, register or take other action with respect to any of the Licensor Marks, except to the extent authorized in advance writing by Licensor. In its efforts, Licensee will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Licensee will not, at any time, misrepresent its relationship with Licensor. Licensee and will not present itself as an affiliate or other legal agent of Licensor. The license described in this Section will terminate automatically in the event of any termination or expiration of this Agreement.
(a) Definition. "Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. "Confidential Information" does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of any party’s rights; or (iv) is independently developed by the receiving party’s employees who have not had access to the disclosing party's Confidential Information.
(b) Use and Disclosure. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party's prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
The Parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.
ZIGGEO HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. ZIGGEO SERVICES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ZIGGEO BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF ZIGGEO HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ZIGGEO BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
THE ZIGGEO SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER ZIGGEO NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD ZIGGEO HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE ZIGGEO SERVICES TO CONTACT EMERGENCY SERVICES.
If Customer wishes to terminate any Customer or End User accounts, Customer may do so by following the instructions on the Site or through the Ziggeo Services. Ziggeo may terminate Customer’s access to all or any part of the Ziggeo Services at any time, with or without cause, with or without notice, effective immediately. Such termination by Customer or Ziggeo may result in the forfeiture and destruction of all information associated with Customer’s use of the Ziggeo Services, including any Customer or End User accounts. Notwithstanding the foregoing, Ziggeo will use commercially reasonable efforts to make Customer Data that is accessible by Customer through the Ziggeo Services as in existence at the time of such termination available for download by Customer from the Ziggeo Services in industry standard format for a period of fifteen (15) days following the date of notice of the applicable party’s intent to so terminate. Any fees paid under this Agreement are non-refundable.
Sections 2 through 9 (other than Sections 2.1 and 4.2) shall survive any termination or expiration of this Agreement.
Customer will defend, indemnify and hold Ziggeo harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action ("Claim") arising out of or relating to Customer's activities under this Agreement or Customer's acts or omissions in connection with the provision of the Customer Application, including without limitation, any intellectual property claims relating to the Customer Application and any violation by Customer or its End Users of the terms of Section 2.5 (Restrictions). Ziggeo will cooperate as fully as reasonably required in the defense of any Claim, at Customer's expense. Ziggeo reserves the right, at Customer's expense, to retain separate counsel for Ziggeo or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any matter in which Customer is a named party and that is otherwise subject to indemnification under this Section. Customer will pay all costs, reasonable attorneys' fees and any settlement amounts or damages awarded against Ziggeo in connection with any Claim. Customer will also be liable to Ziggeo for any costs and attorneys' fees Ziggeo incurs to successfully establish or enforce its right to indemnification under this Section.
Except as provided in Section 8.3, this Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Except as provided in this Section, any dispute arising under this Agreement will be determined by binding arbitration in New York, New York in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the "Federal Arbitration Act").
(a) Details. The arbitration will be governed by the then-current terms of the Commercial Arbitration Rules of the American Arbitration Association (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. The award of the arbitrator will be based on the evidence admitted and the substantive law of the State of New York and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify the terms of this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction. Each party will be entitled to obtain a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 8.3 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(b) Injunctive Relief. Notwithstanding any provision in this Section to the contrary, Ziggeo may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action Customer takes or threatens to take in violation of the terms of this Agreement.
(c) Individual Basis Only. It is the intent of the parties to require any claims or controversies between them to be submitted to arbitration on an individual basis only. CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR BE ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.
Customer will not assign or otherwise transfer this Agreement, in whole or in part, without Ziggeo's prior written consent. Any attempted assignment, delegation, or transfer in violation hereof will be null and void. Ziggeo may assign, transfer or delegate any Ziggeo’s rights and obligations under this Agreement without consent.
No modification to this Agreement, nor any waiver of any rights, will be effective unless consented to in a writing signed by both parties. Any waiver of any breach or default by either party will not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
Each party is an independent contractor in the performance of each and every part of this Agreement. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Agreement. Customer does not have the authority to commit Ziggeo in any way and will not attempt to do so or imply that it has the right to do so.
In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.
Any notice required or permitted to be given hereunder will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, or by overnight delivery. Ziggeo may use Customer's current address, as provided by Customer in connection with billing and payment activities. Ziggeo's current address may be found on its website.
This Agreement supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Ziggeo, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
A party is not liable under this Agreement for non-performance caused by events or conditions beyond that party's reasonable control (each, a "Force Majeure Event") if the party makes reasonable efforts to perform. Either party may terminate this Agreement on written notice to the other party if the Force Majeure Event continues more than 30 days.
Ziggeo provides the Ziggeo Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department or other subdivision or entity of any government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Ziggeo Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Ziggeo Services were developed fully at private expense.
Contact. Customer may contact Ziggeo at:
Last Updated: 2018-07-26