The following terms and conditions (“Terms of Service”) apply to the Services to be delivered by Zoomifier Corporation, a California corporation (“fullfeel”) to you or the organization on whose behalf you are purchasing these Services (“Customer”).
PLEASE CAREFULLY READ THESE TERMS. BY SUBSCRIBING TO OUR SERVICES OR BY CLICKING “VIEW CONTENT”, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THIS AGREEMENT.
“Agreement” means, collectively, the Service Order, these Terms of Service, and each of the other documents referenced in these Terms of Service.
“Billing Settings” means the customer portal accessible to the Customer containing, among other information, the pricing terms applicable to Customer’s use of the Services.
“Reseller” means, if applicable, the authorized non-affiliate third party reseller that sells the Service to Customer.
“Reseller Agreement” means the separate agreement between Customer and Reseller regarding the Service. The Reseller Agreement is independent of and outside the scope of this Agreement.
“Services” means the fullfeel digital selling services and related technologies, including technology licensed by fullfeel and incorporated into fullfeel’s digital selling services and related technologies.
“Service Order” means the document which describes the Services you are purchasing, including any online order, process, or tool through which you request or provision Services.
“Subscription Term” means the duration of Customer’s authorized access to the Service.
“Taxes” means all local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use and withholding taxes.
- SERVICES AND SUPPORT
2.1 Services. fullfeel will provide Services in accordance with the Agreement.
2.2 Support. fullfeel will provide customer support as per the terms and conditions described in Service Level Agreement.
3.1 Fees. Customer shall be responsible for the payment of any associated subscription fees in accordance with this Agreement and fullfeel’s standard payment and billing policies configued in Billing Settings. The pricing and payment terms applicable to any renewal Subscription Term will be the same as that during the prior Subscription Term unless fullfeel has provided Customer with notice of any change to the pricing and/or payment terms at least sixty (60) days before the end of such prior Subscription Term, in which case any such change will be effective upon the commencement of the following renewal Subscription Term.
3.2 Credit Card Payments. If Customer elects to pay fees by credit card, Customer agrees and warrants to fullfeel that the credit card information provided by Customer to fullfeel is, and will be maintained as, true, complete, accurate and up to date, and that Customer is authorized to use such payment instrument in connection with its subscription for the Service. Customer agrees to pay and hereby authorizes fullfeel to bill Customer’s credit card on a periodic basis in accordance with the terms of this Agreement during the Subscription Term. Customer will not chargeback any amounts paid to Customer and will reimburse fullfeel for any chargeback fees associated with the foregoing.
3.3 Taxes. Fees do not include any Taxes. Customer is responsible for paying all Taxes. If fullfeel has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount will be invoiced to and paid by Customer unless Customer provides fullfeel with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.4 Orders through Reseller. If Customer orders the Services from a Reseller, then, unless otherwise notified by fullfeel or the Reseller, (a) fees for the Services will be set between Customer and the Reseller, and any payments will be made directly to Reseller under the Reseller Agreement; (b) the remaining provisions in this Section 3 (Payments) will not apply to the Service; (c) all changes to Customer’s subscription, including cancellation and changes shall be made by contacting Reseller; and (d) fullfeel may share information concerning Customer’s account and subscription terms with Reseller.
4.1 Ownership. fullfeel shall own all rights, title and interest in the Services.
4.2 Customer’s Content. Customer will retain ownership of any intellectual property rights that Customer holds in the content submitted by the Customer in the Service. fullfeel shall not use the Customer’s Content for any purpose other than to fulfil its obligations under this Agreement and shall not share Customer’s Content with any third parties except as directed by Customer or otherwise permitted by this Agreement.
- PUBLICITY RIGHTS
Customer may, as reasonably requested, will cooperate with, and assist fullfeel in reasonable promotion of the Service. Customer shall in no way be obliged to divulge any confidential information of itself or third parties during this promotion or at any other time.
- REPRESENTATIONS AND WARRANTIES
6.1 Mutual Representations and Warranties. Each party represents and warrants that:
(i) It has full right, power and authority to enter into this Agreement and to discharge its obligations hereunder; and
(ii) It has not entered into any agreement inconsistent with this Agreement, or otherwise granted any third party any rights inconsistent with the rights granted to the other party under this Agreement.
6.2 fullfeel Representations and Warranty. fullfeel represents and warrants that:
(i) the Service does not infringe upon any intellectual property rights of any third party; and
(ii) the Service provided to Customer shall comply with all applicable laws and regulations..
- LIMITATION OF LIABILITY; INDEMNIFICATION
7.1 NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER.
7.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT.
7.3 fullfeel AGREES TO DEFEND, INDEMNIFY, AND HOLD CUSTOMER HARMLESS FROM AND AGAINST ANY COSTS, LOSSES OR DAMAGES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF ANY CLAIM THAT SERVICE INFRINGES THE PATENT, COPYRIGHT, OR TRADE SECRETS OF ANY THIRD PERSON. SUCH INDEMNIFICATION CLAIMS ARE EXEMPT FROM THE LIMITATION OF LIABILITY CAPS SET FORTH IN 7.1 AND 7.2 ABOVE.
- TERM AND TERMINATION
8.1 Term. Except as otherwise provided for in any related Service Order, the standard Subscription Term for this Agreement is one (1) month. Subject to any different renewal Subscription Term that may be set forth in the Service Order, if any, and until terminated or modified in accordance with this Agreement, Customer’s Subscription Term will automatically renew for additional Subscription Term equal to the initial Subscription Term following the end of each Subscription Term.
8.2 Default. If either party defaults in the performance of any of its material obligations hereunder and such default is not corrected within thirty (30) days after written notice thereof by the other party, then such other party, at its option, may, in addition to any other remedies it may have, terminate this Agreement by giving written notice of termination to the defaulting party. In the event of termination for fullfeel’s breach, fullfeel shall, within thirty (30) days of termination, reimburse Customer for any amounts paid in excess of fees accrued for use of the Service prior to the date of termination.
8.3 Insolvency. This Agreement may be terminated by either party, upon written notice, (i) if the other party becomes insolvent, (ii) upon the institution by the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of its debts, (iii) upon the institution of such proceedings against the other party, which are not dismissed or otherwise resolved in its favor within sixty (60) days thereafter, (iv) upon the other party’s making a general assignment for the benefit of creditors, or (v) upon the other party’s dissolution or ceasing to conduct business in the normal course.
8.4 Surviving Terms: The following Sections of this Agreement shall survive the termination of this Agreement: Sections 4 (Ownership), 6 (Representations and Warranties), 7 (Limitation of Liability; Indemnification) and 9 (General).
8.5 Effect of Termination. Upon termination of this Agreement, Customer will cease to have access to the Service.
9.1 Governing Law. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles.
9.2 Severability. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which shall remain in full force and effect.
9.3 Independent Contractors. fullfeel and Customer are independent contractors. Nothing contained herein shall constitute either party as an agent, partner or joint venture of the other party for any purpose whatsoever.
9.4 Modification. No alteration, amendment, waiver, cancellation or any other change in any provision of this Agreement shall be valid or binding on either party unless mutually assented to in writing by both parties.
9.5 Waiver. The failure of either party to enforce any provision of this Agreement shall in no way be construed to be a waiver of such provision, nor in any way affect the right of either party to enforce each and every provision of this Agreement thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
9.6 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Neither party shall assign any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided, that such prior written consent shall not be required for any assignment by a party to an acquirer of all or nearly all of its business or assets.
9.7 Notices. Notices will be sent to the designated address set forth herein, and be deemed delivered as of the date of the actual receipt.
To fullfeel: Zoomifier Corporation, Attention: Customer Success, 5776 Stoneridge Mall Road, Suite 190, Pleasanton, CA 94588
To Customer: Customer’s address as provided in fullfeel’s account information for Customer.
fullfeel may give electronic notices by general notice via the Service and may give electronic notices specific to Customer by email to Customer’s e-mail address(es) on record in fullfeel’s account information for Customer or through the notifications center of the Service. fullfeel may give notice to Customer by means of telephone at the telephone numbers on record in fullfeel’s account information. Customer agrees to keep all of Customer’s account information current.
9.8 Force Majeure. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of either party, other than a failure to make payments due hereunder, shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond reasonable control of the party charged with a default, including without limitation causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.
9.9 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between the parties and supersede all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter of this Agreement.