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ZAGENO Customer Service Fee Agreement

BACKGROUND

Customer can use the Platform to purchase Products (as defined below) from Suppliers (as defined below) of their choice.

From time to time, Customer and Zageno may enter into order forms referencing these Zageno Terms and Conditions (any such order form, together with any exhibit, schedule or appendix attached thereto, an “Order Form”), pursuant to which Customer can acquire a subscription to the Platform (as defined below) and receive additional Services (as defined below). Order Forms are not effective or deemed entered into until signed by an authorized representative of each party. These Terms and Conditions apply to any attached Order Form and all subsequent Order Forms to the exclusion of any other terms or conditions that either party seeks to impose or incorporate or that are implied by course of dealing. In the event of any conflict between these Terms and Conditions and any Order Form, the terms and conditions in such Order Form will govern solely with respect to such Order Form and the services provided in connection therewith.''

 

1      RIGHT TO USE Platform SERVICES

1.1  Services. Subject to the terms and conditions of this Agreement, Zageno will make available and/or perform, as applicable, to Customer (a) the Platform and Documentation, as set forth below, (b) the Configuration Services as set forth on an Order Form, and (c) other mutually agreed upon services in a Form (collectively, the “Services”) to Customer during the Term and pursuant to this Agreement.

1.2  Platform. Subject to the terms and conditions of this Agreement, Zageno hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicensable (except as expressly set forth herein) right to access and use the Platform and Documentation during the Term solely for its internal business and procurement purposes. “Platform” means Zageno’s proprietary e-commerce marketplace and procurement platform and associated software and technology, as may be updated or modified, which is made available by Zageno to Customer pursuant to an Order Form. “Documentation” means Zageno’s then current published guides, manuals and on-line help for the Platform (which may be provided in paper, digital memory storage device, over the web or via online help). The features and functionality of the Platform available will be determined by the Tier described on the applicable Order Form (details available here https://try.zageno.com/pricing-plans-features, (the “Tier Page”)). The Tier Page is incorporated herein by reference.

1.3  Limitations.

a          Customer will not provide access to the Platform to any person who is not an employee or contractor of Customer (each, an “Authorized User”). Zageno will enable account creation for the designated list of Authorized Users’ provided by Customer to Zageno in connection with the Configuration Services. Customer is solely responsible for, and will be solely liable for, all uses of accounts linked to Customer’s or its Authorized Users’ login credentials (whether or not authorized) and its and their use of the Platform, and for ensuring that all Authorized Users’ use of the Platform complies with this Agreement. Customer and its Authorized Users are responsible for maintaining the confidentiality of their respective password and account.

b          Except as expressly permitted hereunder Customer will not and will not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Platform; (ii) modify, translate or create derivative works based on any of the Platform or Documentation; (iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Platform or Documentation; (iv) use any of the Platform or Documentation for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Platform or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (vi) remove or obscure any proprietary notices or labels of Zageno or its suppliers on any of the Platform or Documentation; (vii) access or use the Platform or Documentation (or any part thereof) to build a competitive or substantially similar product or service; or (viii) use the Platform or the Documentation other than for its legitimate business purposes as contemplated by this Agreement.

1.4  Third-Party Services. The Platform may enable access to or integration with certain third-party services, products, solutions, software or technology (collectively, the “Third Party Services”) to enable the Customer’s use thereof. Customer may elect, via the Platform, to enable the access to or integration with a Third Party Service that is permitted via the Platform. ZAGENO may share with each such Third Party Service all Customer Data that is requested or otherwise accessed by such Third Party Service. Any data, information or other materials collected via or received by Zageno from any Third Party Service will be deemed Customer Data.

 

2      MARKETPLACE

2.1  Purchasing. Customer can place orders for products and/or services (“Products”) offered and supplied by third-party suppliers or vendors (“Suppliers”) on the Platform. Orders for Products placed by Customer on the Platform are “Orders”.

2.2  Orders and Vendor of Record. All Orders will be fulfilled by Suppliers; Products are supplied by Suppliers and shipped directly from Supplier to Customer.

a          Certain Suppliers may be indicated as “Preferred Suppliers” on the Platform. For any Order placed on the Platform for Products supplied by a Preferred Supplier, Zageno may be listed as the vendor of record for such Products, and Customer will pay Zageno directly for such Products.

b          Suppliers not listed on the Platform as a Preferred Supplier are “Procurement Service Suppliers.” An Order placed on the Platform for Products supplied by a Procurement Service Supplier is deemed a request by Customer for Zageno to submit a purchase order for such Order to the applicable Procurement Service Supplier on behalf of Customer (such Order, a “Procurement Service Order”). Solely if and to the extent that Customer places a Procurement Service Order on the Platform, Customer hereby appoints Zageno as its authorized agent to, in accordance with any Procurement Service Order and the Authorization Form set forth on Exhibit B (the “Authorization Form”), and in Customer’s name and on Customer’s behalf, submit a purchase order with Procurement Service Supplier with or for Customer’s account with such Procurement Service Supplier, to correspond with such Procurement Service Supplier regarding such Procurement Service Order, and to pay Procurement Service Suppliers for such Procurement Service Order. Such appointment and authorization will be effective during the Term and revocable only upon the mutual written agreement of both parties that is validly executed by authorized representatives thereof. For Procurement Service Orders, the applicable Procurement Service Supplier may be listed as the vendor of record for such Products, and Customer will remit the appropriate payment for such Products to Zageno who will pay the Procurement Service Supplier for such Products on Customer’s behalf. Customer may only revoke, amend or limit the Authorization Form upon ninety (90) days written notice to Zageno; such revocation, amendment, or limit may restrict Customer from purchasing Products from Procurement Service Suppliers. The authorization set out in the Authorization Form shall terminate following the Term.

2.3  Order Confirmation. All Orders are subject to the confirmation of the applicable Supplier; an Order is not confirmed until Zageno provides written confirmation to Customer (notification via email or the Platform portal sufficient). Zageno will use reasonable efforts to confirm an Order within twenty four (24) hours of an Order’s authorization or approval pursuant to this Agreement. A Supplier may respond to an Order and offer, for each Product included in the Order, different pricing for Products, different Product volume or unit number availability, different Product shipping costs or timing, or other terms that differ from the initial Order; Zageno will provide notice of such different terms (such notice, the “Order Exception”) to Customer. Customer may accept the Order Exception via the Platform (in which case, such new terms supersede the prior Order and such new terms are deemed the Order), or Customer may reject the Order Exception, in which case the applicable Order will be cancelled.

2.4  Suppliers. All Orders are subject to the terms and conditions of the applicable Supplier, available here https://zageno.com/c/supplier-terms and the terms and details listed on the Platform page for such Product (collectively, the “Supplier Policies”). Supplier Policies include shipping and return policies of the applicable Supplier as well as the warranties for any Product. The Supplier Policies are subject to change; before placing any Orders, Customer must review the applicable Supplier Policies as they may be updated, and will govern the purchase of any Product. As between Zageno and Customer, in the event of a conflict between the Supplier Policies and this Agreement, this Agreement will govern. The Supplier Policies of a Supplier may not include delivery and shipping terms, product warranties, or cancellation and return terms; solely to the extent any such term or warranty is not included in the Supplier Policies applicable to an Order, the relevant default terms or warranty available here https://zageno.com/c/supplier-terms will apply to such Order (the “Default Policies”). The Default Policies are subject to change; before placing any Orders, Customer must review the applicable Default Policies as they may be updated, and, subject to the foregoing sentence, will govern the purchase of any Product.

2.5  Authorization. Certain Authorized Users will be designated by Customer in writing or appointed by Customer via the Platform as “Administrative Users”. Administrative Users have the permissions to act on behalf of the Customer, including to remove or authorize new Authorized Users, or to designate Authorized Users as accounts with the authority to approve or accept certain Orders or Order Exceptions initiated by other Authorized Users (the Authorized Users with such approval authority, the “Approvers”). Orders will not be processed (or for a Procurement Service Order, submitted to the applicable Procurement Service Supplier) until approved by an applicable Approver. Any Order or Order Exception approved or accepted by an Approver account (whether or not such action was authorized or permitted by Customer) will be fully processed and submitted and subject to the Supplier Policies and this Agreement. More information regarding the permissions and authority of Administrative Users and the authorization procedures is available here https://zageno.com/c/solutions/.

2.6  Product Pricing. Prices for Products are listed on the appropriate Platform page for such Product, and are set by Zageno at Zageno’s sole discretion; prices are subject to change. Customer must remit the price listed on the Platform for each such Product subject to any additional discounts to which Zageno may offer at its sole discretion or as otherwise agreed to in writing by Customer and Zageno, or, if applicable, the revised price set out in an Order Exception accepted by Customer, plus any shipping charges or Fees and any Taxes or customs duties (collectively, the “Total Price”).

2.7  Support. Support for Products will be provided by the applicable Suppliers, and Zageno will provide reasonable assistance to Customer in coordinating such support.

 

3.1  Customer Data.

a          Customer owns the data collected from or submitted or provided to Zageno by Customer or its Authorized Users via the Platform or in the course of Customer’s receipt of the Services, excluding data and information relating to the operation and/or performance of the Platform (“Customer Data”). Customer is responsible for the accuracy, quality, integrity and legality of the Customer Data and the means by which such data was acquired.

b          Customer hereby grants to Zageno a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable, nontransferable (except as set forth in Section 10): (i) right and license, during the Term, to copy, distribute, display, modify, create derivative works of and otherwise use the Customer Data to (1) perform Zageno’s obligations under this Agreement and (2) provide individualized product suggestions and advertising to Customer via the Platform based on Customer’s activity on the Platform and Order history; and (ii) perpetual, irrevocable right and license during and after the Term to (1) collect, analyze and use the Customer Data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Zageno offerings, (2) use the Customer Data for general market or industry benchmarking, analytics and reporting and to publish and display such results (provided that such published and/or displayed results do not include information that identifies or would reasonably be expected to identify Customer as the source of such data), solely to the extent and that the data set into which the Customer Data is bundled does not consist of data solely attributable to Customer, and (3) create anonymized data from the Customer Data. Such results and the anonymized data are not Customer Data hereunder.

c          Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses expressly granted to Zageno under this Agreement or as authorized by Customer in connection with its use of the Platform.

3.2  Platform Ownership; Reservation Of Rights. As between the parties, Zageno retains all rights, title and interest in and to the Platform and Documentation, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. Zageno grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Platform and Documentation. Zageno hereby reserves any and all, and Customer will acquire no, rights, title or interest in and to the Platform or Documentation or any copies thereof (by whoever produced) other than the limited licensed rights expressly granted under this Agreement.

3.3  Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Zageno with respect to the Platform or Documentation. Customer hereby grants Zageno a royalty-free, fully paid-up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback in whole or in part, including the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback in whole or in part.

3.4  Customer Responsibilities. Customer will prevent unauthorized access to or use of the Platform and Documentation and Services and notify Zageno promptly of any such unauthorized access or use. Customer will not use the Platform or purchase any Products on behalf of or for the sole benefit of any third party. All Products must be purchased in Customer’s name and on Customer’s behalf.

3.5  Zageno Responsibilities. Zageno will (a) comply with the Service Level Agreement attached hereto as Exhibit A, (b) implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Customer Data that this Agreement does not expressly authorize, and (c) from time-to-time in accordance with Zageno’s generally applicable procedures make available and implement upgrades and updates to the Platform that are made generally commercially available to its users at no additional charge.

4      FEES; PAYMENT TERMS

4.1  Fees. Customer will pay Zageno all Fees pursuant to the applicable Order Form(s) or herein. If payment of any Fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by law, rule or regulation (“Law”) and Customer will pay all reasonable expenses of collection. In addition, if any payment has not been received by Zageno within thirty (30) days from the time such payment is due, Zageno may suspend access to the Platform or Services until such payment is made. At its discretion, Zageno may increase the pricing for SaaS Fees or Service Fees stated on the applicable Order Form for any Renewal Term upon giving Customer at least ninety (90) days’ notice (which may be sent by email) prior to the end of the then-current term.

4.2  Payment Terms. Unless otherwise set forth in an Order Form, Customer will pay Zageno all Fees via one of the payment method(s) permitted on Customer’s account on the Platform, which may include (but is not be limited to) payment (a) by credit card, (b) through an online account through a third-party provider or payment processor, or (c) via direct billing/ACH. By providing any credit card, online account or direct billing/ACH information, Customer authorizes Zageno to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until Customer notifies Zageno in writing. Collection of credit card information and the processing of payment of Fees by credit card will be performed by third party payment processers (the “Payment Processors”). Customer will be subject to the applicable Payment Processor’s terms and conditions for the processing of payments, as the same may be modified by such Payment Processor from time to time (collectively, the “Payment Processer Terms”). Information provided to any Payment Processor is governed by the applicable Payment Processor Terms. Zageno is not responsible for the performance of any Payment Processor. Customer will provide accurate information with respect to the applicable method of payment and agrees to promptly contact Zageno if any such information needs to be updated. Customer will ensure that it has sufficient funds or credit (as applicable) associated with the selected method of payment. Customer understands that the amounts charged or debited may vary and that this authorization will remain in effect during the Term. If an ACH payment is returned from the applicable bank account for insufficient or uncollected funds or for erroneous information, Zageno may reinitiate the returned ACH debit to the applicable bank account. Any amounts owed to Zageno that cannot be collected by ACH debit may be charged to any backup credit card on file for Customer. All Fees will be paid in the currency specified in the applicable invoice. Unless otherwise stated herein, all Fees are non-refundable.

4.3  Taxes. All amounts payable by Customer to Zageno hereunder are exclusive of any sales, use and other taxes or duties, however designated, including withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Zageno. Customer will not withhold any Taxes from any amounts due Zageno.

 

5      TERM, TERMINATION

5.1  Term. This Agreement will be effective from the Effective Date and continue for twelve (12) months (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive twelve (12) month terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives the other written notice of non-renewal at least sixty (60) days before the end of the then-current term.

5.2  Termination. In addition to any other remedies it may have, either party may terminate this Agreement or any Order Form if the other party materially breaches any terms or conditions of this Agreement and fails to cure such breach within thirty (30) days’ after receiving written notice thereof.

5.3  Survival. Except as expressly stated herein, upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Zageno to provide the Platform and Documentation will immediately terminate and Customer will (a) cease use of the Platform and Documentation; and (b) return or destroy all other copies or other embodiments of Zageno’s Confidential Information; provided that any payment obligations that have accrued prior to such termination and Sections 3.1(b)(ii), 3.2, 3.3, 4, 5, 6, 7, 8, 9 and 10 will survive.

 

6      CONFIDENTIALITY

As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Zageno’s Confidential Information includes the Platform and Documentation, the identity of Suppliers with Products are offered via the Platform, the pricing of any Product available on the Platform, and the terms of this Agreement. Customer’s Confidential Information includes the Customer Data (subject to the rights granted to Zageno herein). Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a party, and 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, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information and will exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of 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 Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.

 

7      REPRESENTATIONS, WARRANTIES AND DISCLAIMER

7.1  Representations and Warranties. Each party represents, warrants and covenants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties; (d) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of the party; and (e) it will comply with all Laws in connection with its activities pursuant to this Agreement. In addition, Zageno represents, warrants and covenants that: (i) it will use industry standard measures to prevent the Platform from containing any “virus”, “trap door”, “Trojan Horse”, “worm”, “self-destruction”, “disabling”, “metering” device or any other malicious code, which could impair Customer’s use of or access to the same; (ii) the Platform and the Services will substantially conform with the applicable Documentation; and (iii) it will provide the Services in a professional and workmanlike manner. In addition, Customer further represents, warrants and covenants that provision of the Customer Data to Zageno hereunder does not and will not violate any other rights of any third party, or any applicable Law.

7.2  Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND DOCUMENTATION AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND ZAGENO DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED TO THE EXTENT ALLOWED BY APPLICABLE LAW, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, ZAGENO DOES NOT WARRANT THAT THE PLATFORM, DOCUMENTATION OR SERVICES ARE ERROR-FREE OR THAT OPERATION OR USE THEREOF WILL BE SECURE OR UNINTERRUPTED. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.

7.3  Disclaimer Regarding Third Party Services. Zageno does not endorse, and is not responsible for any Third Party Services. Zageno will not be responsible, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Service.

7.4  Disclaimer Regarding Suppliers and Products. Customer acknowledges that Zageno only provides the Platform as a marketplace solution for Customer to purchase Products that are provided by Suppliers; Zageno does not fulfill Orders and only assists in the processing or placing thereof. Zageno does not ship or inspect any Products, and Zageno does not guarantee that a Supplier will actually fulfill an Order. Except as explicitly provided in this Agreement, (a) Zageno makes no representations or warranties about the suitability, reliability, timeliness or accuracy of any information provided by Suppliers and does not independently verify this information, and (b) Zageno makes no representations or warranties as to the quality, safety or legality of items advertised, or that a Product will meet the Customer’s requirements, needs or expectations. Zageno is not responsible to Customer, or any of Customer’s own customers, clients, buyers or end users as relates to their or Customer’s use of the Products, or for any disputes with or liability that may arise with any Supplier.

 

8      LIMITATIONS OF LIABILITY

8.1  Disclaimer of Consequential Damages; Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM (A) A PARTY’S INDEMNIFICATION OBLIGATIONS OR (B) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY (I) SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF, OR (II) EXCLUDING PAYMENT OBLIGATIONS, AMOUNTS EXCEEDING THE AGGREGATE SAAS FEES, CONFIGURATION FEES AND SERVICE FEES PAID BY CUSTOMER TO ZAGENO UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY (AND THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT).

8.2  Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

 

9      INDEMNIFICATION

9.1  Indemnification by Zageno. Zageno will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Parties”) against any claim, demand or allegation by a third party (a) that Customer’s or its Users’ authorized use of the Platform or Documentation infringes any intellectual property right of a third party or (b) arising out of the gross negligence or intentional misconduct of Zageno in its performance under this Agreement. Further, Zageno will indemnify the Customer Party from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Customer Parties (including reasonable attorneys’ fees) arising therefrom or in connection therewith. Zageno’s obligations described in Section 9.1(a) will not apply to claims to the extent arising from (i) modification of the Platform or Documentation by any party other than Zageno without Zageno’s express consent; (ii) the combination, operation, or use of the Platform or Documentation with other product(s), data or services where the Platform or Documentation would not by itself be infringing; or (iii) unauthorized or improper use of the Platform or Documentation or use in violation of this Agreement ((i), (ii) and (iii), collectively, the “Indemnification Exclusions”). If the use of the Platform or Documentation by Customer has become, or in Zageno’s opinion is likely to become, the subject of any claim of infringement, Zageno may at its option and expense (1) procure for Customer the right to continue using the Platform or Documentation as set forth hereunder; (2) replace or modify the Platform or Documentation to make it non-infringing so long as the Platform or Documentation has at least equivalent functionality; (3) substitute an equivalent for the Platform or (4) if options (1)-(3) are not reasonably practicable, terminate this Agreement and provide Customer a pro-rata refund of the SaaS Fee. This Section 9.1 states Zageno’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

9.2  Indemnification by Customer. Customer will defend Zageno and the officers, directors, agents, and employees of Zageno (“Zageno Parties”) against (a) any claim, demand or allegation by a third party (i) arising from or related to any use or disclosure by Customer of any Platform or Documentation in violation of this Agreement, (ii) use of any Third Party Service, or (iii) the Indemnification Exclusions, or (b) any dispute between Customer and a Supplier, including any breach or alleged breach by Customer of the Supplier Policies. Further, Customer will indemnify the Zageno Party from Liabilities that are payable to any third party or incurred by the Zageno Parties(including reasonable attorneys’ fees) arising therefrom or in connection therewith.

9.3  Procedure. If a Customer Party or a Zageno Party becomes aware of any matter for which it believes it should be indemnified or defended under Section 9.1 or 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the such Party by any third party (each an “Action”), such Customer Party or Zageno Party will give the other party prompt written notice of such Action. Customer Party or Zageno Party will cooperate, at the expense of the other Party, with the other Party and its counsel in the defense and Customer Party or Zageno Party, as applicable will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.

 

10    GENERAL

Customer may not provide access to the Platform or Documentation or Services to any person or entity that is (a) identified on the Specially Designated Nationals List or Foreign Sanctions Evaders List of the Office of Foreign Assets Control, U.S. Department of the Treasury, as amended from time to time; (b) located in any country that is subject to U.S. economic sanctions prohibiting such access; or (c) otherwise unauthorized to have such access under any applicable Law. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement without the other party’s prior written consent; provided that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section 10 will be null and void. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever (except as provided herein with respect to Procurement Service Orders and Procurement Service Suppliers and as set out in the Authorization Form). Any unauthorized use of the Platform or Documentation will cause irreparable harm and injury to Zageno for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Zageno will be entitled to injunctive relief in the event Customer uses the Platform or Documentation in violation of the limited license granted herein or uses the Platform or Documentation in any way not expressly permitted by this Agreement. All notices under this Agreement will be in writing and sent to the recipient’s address set forth in the most recent Order Form (or other address requested in writing by a party) and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship.  The titles and headings in the Agreement are for ease of reference only and will not affect the meaning or construction of any of the terms of the Agreement. Any phrase introduced by the terms “other”, “including”, “include” and “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. Notwithstanding anything herein to the contrary, Zageno may mention Customer and the relationship between Zageno and Customer (and use Customer’s logo(s) in connection therewith) in Zageno’s marketing collateral, website, and other promotional and marketing materials. 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, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, the party not affected by the force majeure event may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. The Agreement and the performance thereof will be governed interpreted, construed and regulated by the laws of the State of New York, United States, without reference to its choice of law rules. All disputes arising out of the Agreement will be resolved by arbitration in accordance with the International Arbitration Rules of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by a commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Arbitration Rules and Procedures. All such arbitration will be conducted at either of the following locations, to be elected by Customer: New York, New York, United States, or London, United Kingdom. The arbitrator shall have the authority to grant specific performance as well as any other remedy authorized by Law and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action for preliminary injunctive relief without first seeking recourse to arbitration to avoid immediate and irreparable harm in the state or federal courts located in New York, New York, and each party hereby submits to the in personem jurisdiction and venue of those courts and agree that any such dispute may be filed in those courts and no other.

 

Exhibit A
Service Level Agreement

1. Definitions:

“Downtime” means any amount of time during a calendar quarter period in which the Platform is not available on a Zageno server due to a network component under control of Zageno.

“Scheduled Downtime” means Downtime during a calendar quarter period that (a) occurs outside the hours of 9AM to 5PM Monday through the Customer local time, (b) does not exceed twelve hours in any 24-hour period, and (c) does not exceed 48 hours per calendar month.

“Availability” means the time in the calendar quarter period, less Downtime, plus Scheduled Downtime, with the result expressed as a percentage of the time in the period.

Time in Period - Downtime + Scheduled Downtime = Availability %
Time in Period

2. Exceptions.

Zageno will not be responsible for failures to meet service levels attributable to the following (collectively, “Exclusions”):

(a) Acts or omissions of the Customer, its agents, employees or contractors (including willful misconduct, negligence, breach of contract, or infringements of third-party proprietary rights);
(b) The Customer’s failure to follow the Documentation;
(c) Data latency or data unavailability as a result of an uncommunicated or uncoordinated change(s) in the Customer systems will not be factored into Downtime; and/or
(d) Downtime due to a force majeure event; operation under a disaster recovery plan; or provision of Services after the Term.

Zageno does not and cannot control the flow of data to or from the Platform and other portions of the Internet. At times, actions or inactions caused by these third parties can produce situations in which the Platform’s connection to the Internet (or portions thereof) may be impaired or disrupted. Although Zageno will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, Zageno cannot guarantee that they will not occur. Accordingly, Zageno disclaims any and all liability resulting from or related to such events.

3. Service Levels.

The Customer will use commercially reasonable efforts notify Zageno of expected or forecasted peak activity periods. Subject to the terms of this Exhibit A, Zageno guarantees a ninety-nine percent (99%) monthly average of Availability of the Platform. Zageno does not monitor availability of individual the Customer usage but only monitors the Platform availability as a whole.

4. Support Obligations.

Upon receipt of a problem or service report (a “Support Instance”), Zageno will promptly open a problem ticket with a unique identifier (a “Problem Ticket”) and classify the problem in accordance with the priority level classifications set forth in Section 5 of this Exhibit A.

 

5. Problem Escalation,

Response, and Resolution.
Upon receipt of Support Instances, the Zageno support team will make commercially reasonable efforts to respond to the Customer to confirm receipt, request additional information (if necessary), and provide status within the following Response Service Levels:

Priority Response Service Level Goals
(during Service Commitment coverage)
0 1 hour
1 2 hours
3 1 business day

Resolution to an identified problem will be deemed complete when both the Customer and Zageno have reviewed the proposed solution, tested the results, and are satisfied that the Customer issue has been resolved. Zageno will make commercially reasonable efforts to deliver a resolution to the Support Instance within the following Resolution Service Levels.

Priority Response Service Level Goals
0 5 business days
1 1 development/release cycle
2 2 development/release cycles

6. Service Commitments.

Zageno will use commercially reasonable efforts to provide telephone support Monday through Friday, 9AM to 5:00 PM the Customer local time, excluding Zageno holidays. Support Instances submitted outside of the normal Zageno support hours will be responded to as soon as possible and no later than the start of the next business day.

7. Priority Classifications.

Priority 0. Zageno will classify the following Support Instances as Priority 0: The Platform is not available or non-operational and is preventing access to or use of the Platform, without a reasonable workaround.
Priority 1. Zageno will classify the following Support Instances as Priority 1:
The Platform is down or non-operational on an intermittent basis and is preventing access to or use of the Platform, without a reasonable workaround, for more than five minutes more than 3 times in an hour.
The Platform is operational but is not returning data within 5 times the average response time it had been operating in the last thirty (30) days, except for Exclusions.
Priority 2. Zageno will classify the following Support Instances as Priority 2:
The Platform is operational but is preventing the completion of non-critical processes, without a reasonable workaround, within 5 times the average response time it had been operating in the last thirty (30) days, except for Exclusions.

Exhibit B
AUTHORIZATION FORM

To Whom It May Concern:

This letter confirms that (“Buyer”) is a customer of Zageno, Inc. (“Zageno”) and has authorized Zageno to act on Buyer’s behalf and in accordance with Buyer’s instructions in relation to the purchase of certain products and materials from you, as a seller of such products and materials, including: (a) placing order(s) with you in Buyer’s name, (b) corresponding with you on Buyer’s behalf and inquiring with you about the status of Buyer’s order, and (c) paying for any order placed with you on Buyer’s behalf.

This authorization shall remain in effect until such time has the Buyer revokes the authorization and Zageno agrees to take no action on behalf of Buyer if such authorization is revoked.

Very truly yours,

____________________________________________
BUYER

By: _________________________________________

Print Name:___________________________________

Title: ________________________________________

Date: ________________________________________

Last Updated: June 28, 2022