Terms and Conditions
Welcome to Zietra! We truly hope you’ll enjoy the value Zietra delivers to your products and customers. Zietra enables its Customers that have, via our software development kit (“SDK“), integrated Ziatra’s services and technology (the “Zietra Services”) into their products (“Zietra-Enabled Product(s)”) to deliver a personalized experience and functionality to individual end-users as decided and needed by clients of the Zietra-Enabled Product (each, an “End User“) based on the respective End User’s behavior, habits and activity. Activating the Zietra Services within a Zietra-Enabled Product, enables Zietra to collect raw information and data about the corresponding End User (collectively, “Raw Data”) through one or more of the End User’s devices, such as a mobile phone (each a “Device”). Zietra processes and analyzes the Raw Data through the Zietra Services to generate meaningful insights and knowledge (collectively, “User Insights”) and then makes certain portions of the User Insights (e.g., behavioral insights) available to the corresponding Zietra-Enabled Product so it can personalize its experience and functionality to the End User. The type, volume, and nature of the User Insights made available to the Zietra-Enabled Product depends on the User Insights for which the Zietra-Enabled Product has subscribed. The SDK, Zietra Services, Raw Data, and User Insights, as well as Zietra’s provision, processing, and generation of the foregoing, shall collectively and severally be referred to herein as, the “Services”.
PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCESSING OR USING ANY PART OF THE SERVICES
- (a) this Agreement;
- (c) our DPA;
- (d) additional terms explicitly incorporated herein by reference; and
- (e) and any additional terms and conditions disclosed to, and agreed to, by you if you upgrade
your account tier or accept additional services, features or products that we offer as part of the Services, each of which is hereby incorporated by reference into this Agreement.
If you do not accept and agree to be bound hereby, you may not access or use any part of the Services. For any questions, please contact us at email@example.com.
1. SCOPE OF SERVICES
1.1. Customer Account. Upon acceptance of this Agreement, you will be able to activate your Customer account for the Services, wherein you can download the SDK, select your plan, subscribe to the categories of User Insights you wish to receive, designate your contact personnel, and communicate with Zietra’s customer service team, among other things (“Customer Account”).
1.2. Customer License. Subject to the terms and conditions of this Agreement and unless otherwise agreed in writing (such as with respect to additional products, features or services for which you may be required to accept additional terms before receiving access thereto), Zietra hereby grants to you a non-exclusive, non-assignable, non-sublicensable (except as expressly permitted below), non-transferable, worldwide limited license, during the term of this Agreement, to do the following as necessary for your development and operation of one or more Zietra-Enabled Products and their interaction with the respective End User (collectively, the “Customer License“):
(a) access and use the SDK and Zietra Services, as well as any other products or materials Zietra provides or makes available to you; and
(b) use the User Insights provided to you by Zietra for which your Zietra-Enabled Product is subscribed, and, subject to requirement as detailed in the duly signed terms of business & service agreement provided at the time of purchasing the services, for their ordinary and intended purposes in accordance with any restrictions applicable to your selected Customer Account tier (e.g., limitation on number of End Users).
You represent and warrant that you will access and use the Services only through computers, networks and other ancillary technology that you own or are authorized to use for such purposes. For the avoidance of doubt, the Customer License includes the right to (i) combine the User Insights with any other data to which you may have access, and (ii) use the User Insights to enhance the respective End User’s experience with your Zietra-Enabled Product. Furthermore, the Customer License is subject to any then-current branding or messaging guidelines for Zietra-Enabled Products that Zietra prescribes in its business & service agreements at the time of purchase or otherwise provides to you. The Customer License includes certain source code that Zietra publicly releases with respect to the SDK, but otherwise does not entitle you to access or use of any other Services’ source code, which is proprietary to Zietra (please confirm on this). Customer undertakes that Customer’s use of the Customer License shall be solely in the context of Customer’s business enterprise and is not applicable nor licensed for the personal, family or household use of Customer itself. Upon written notice to Zietra (with appropriate details), you may sublicense the Customer License to one or more subcontractors to the extent such subcontractor is acting on behalf of or for the benefit of you, has agreed to adhere to the Customer License and other usage restrictions herein, and is otherwise subject to terms at least as protective of Zietra’s rights (such as ownership) as provided for herein. You at all times shall be primarily responsible and liable for the acts and omissions of your employees and subcontractors as if they were your own.
1.3. End Users and Data. An End User may request Zietra and/or Customer to delete such End User’s User Insights, and you shall provide a reasonable mechanism for End Users to make such request to Customer, and shall promptly comply with such request, at no cost to the End User. In the event of one of the following situations, Zietra will not be able to provide you with such User Insights: (i) an End User is required to activate the Zietra Services, and the End User does not activate the Zietra Services within your Zietra-Enabled Product, (ii) the End User does not grant Consent to the processing and analyzing of its User Insights to which Customer has subscribed (as further set forth in Section 7.1), or (iii) the End User requests Zietra to delete such End User’s User Insights and/or close its Zietra account, Zietra will not be able to provide you with such User Insights. You are not entitled to receive Raw Data with respect to any End User. Customer shall be the solely responsible to have all security mechanisms in place to protect the End User data, while the End User data is in its possession or control. While using the Zietra Services, certain data will be made available and/or accessible to Zietra and/or the Zietra Services. Customer hereby grants Zietra a royalty-free, fully-paid, irrevocable, sublicensable (to Zietra Affiliates and to third party hosting providers of the Zietra Services), non-exclusive license to use, process, reformat, encode, reshape, transform, impute, display, copy the End User Data in order to: (i) provide you the Services; (ii) administer and make improvements to the Services; and (iii) collect and analyze anonymous information. Customer represents, warrants and covenants that it shall only provide, or will make available to Zietra, End User data that does not violate or infringe any applicable law or regulation, or the rights of any third parties.
1.4. Delivery and Acceptance. The SDK, Services, User Insights and any other information or material Zietra provides to you shall be deemed accepted upon Zietra’s making the same available to you by physical or electronic delivery or download or otherwise. You may notify Zietra of any perceived deficiency therein, and Zietra may, but is not obligated to, provide an error correction or work-around for the same.
1.5. Other Charges. Services may require and utilize Internet connection or data access. To the extent that any such carrier charges for Internet or data usage are applicable, you agree to be solely responsible for those charges. You are also solely responsible for any computers, devices, networks or other ancillary technology you connect to, or utilize with, the Services.
1.6. Technical Issues. Customer acknowledges it is a professional technology entity familiar with SDKs. Unless otherwise expressly agreed in writing by Zietra, Zietra may, but is not obligated to, respond to technical questions.
1.7. Authorizations. Customer warrants that it has obtained any necessary authorization, consents, and other permissions that may be required under applicable law, to enable the SDK to function as intended, prior to using the Services.
2. LEGAL AGE
You represent that the individual accepting this Agreement is at least eighteen (18) years of age and that there is no legal reason why you should be prevented or restricted from using the SDK or Services.
3. YOUR ZIETRA CUSTOMER ACCOUNT
3.1. No Conflict. You represent and warrant that: (i) you have the full and unrestricted power and authority to enter into this Agreement and to carry out the actions contemplated hereby; and (ii) your actions hereunder do not and shall not conﬂict with or result in a breach of any other agreement or any judgment, order, or decree by which you are bound.
3.2. Customer Personnel. You may authorize as many individual employees and/or subcontractors (“Customer Personnel”) as provided for in your then-current Customer Account plan (and if no number is specified, then unlimited Customer Personnel shall be the default) to access and use the Services as provided for herein.
3.3. Access Credentials. You may be required to create login credentials (“Credentials”) for your Customer Account. You are responsible for maintaining the conﬁdentiality of your Credentials and Customer Account, and you are fully responsible for all activities that occur in/under such Credentials and Customer Account. You agree to notify us in writing immediately of any unauthorized access to, or use of, your Credentials or Customer Account, or any other breach of security. We are not liable for any loss or damage arising from your failure to comply with this Section (Access Credentials).
3.4. Account Info. By registering for a Customer Account, you agree to: (i) provide true, accurate, current and complete information as part of the registration process; and (ii) maintain and promptly update such information to keep it true, accurate, current and complete.
4. LICENSE RESTRICTIONS
As a condition to (and except as expressly permitted by) the Customer License, you may not do, or encourage or permit to be done, any of the following:
4.1. Use the Services or your Customer Account to interfere with or disrupt the Services or any servers or networks connected to the Service’s servers, or to interfere with an End User’s use and enjoyment of the Services, including but not limited to: (i) transmitting, uploading or inputting any Raw Data or other material into the Services that contains viruses, trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, or (ii) attempting to gain unauthorized access to the Service’s technology or End Users’ Zietra accounts or personal information through password mining or any other means;
4.2. Use the Services in excess of any limitations established for your Customer Account plan;
4.3. Use the Services to retrieve End User passwords, or solicit or obtain data beyond the data necessary for the functioning of your Zietra-Enabled Product;
4.4. Modify, adapt, arrange, or translate the Services, or use the Services to create any derivative work of the Services or to develop any product or service that is the same as (or substantially similar to, or is otherwise intended to or does replace) the Services or that directs End Users away from the Services;
4.5. Except as permitted by applicable law, disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of the Services;
4.6. Remove, alter, or conceal any copyright, trademark, or other proprietary rights notices or legends displayed on or in the Services;
4.7. Employ any hardware, software, device, or technique to pool connections or reduce the number of products (such as Devices or Zietra-Enabled Products), services, or users (such as End Users) that access or use the Services (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Customer License or Customer Account tier;
4.8. Forge or manipulate identifiers in order to disguise the origin of any data or information inputted or uploaded to, or transmitted through, the Services;
4.9. License, sublicense, sell, resell, lend, rent, distribute, or otherwise make available to any third party, the Services or any User Insights to any third party;
4.10. Publicly perform, display or communicate the Services or any User Insights; and/or
4.11 Connect the Services for children under 13 years of age or permit children under the age of 13 to access, use or connect any Device to the Services or grant any End User Permission for a Zietra-Enabled Product.
Your failure to comply with any of the restrictions in this Section 4 (License Restrictions) constitutes a material breach of this Agreement and may result in our taking all or any of the following actions: (a) issue a warning to you; (b) suspend or disable access to the Services (in whole or in part) or other Zietra Property by any individual Customer Personnel who has failed to comply with such restrictions; (c) initiate legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach; and/or (d) disclose such facts and information to law enforcement authorities as Zietra reasonably believes is required or appropriate.
5.1. No End User Fees. Zietra does not charge the End User any additional fee in connection with the Services or otherwise within a Zietra-Enabled Product. Any fees charged by you to an End User with respect to the Services or within a Zietra-Enabled Product are subject to your agreement with the respective End User, and you are solely responsible and liable for such fees.
5.2. Fees. Zietra will invoice you on an agreed frequency in arrears the fee and any other charges as agreed in writing between you and Zietra
5.3. Payment Terms. With respect to any fees owed or paid by you to Zietra under this Agreement: (a) payment shall be due thirty (30) days after the date of Zietra’s invoice; (b) if you fail to remit any payment when due, interest shall accrue on a daily basis at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower, from the original due date until paid; (c) all fees are stated, and are to be paid, in local currency, and may be paid by credit card, bank wire, or check from a designated. bank; and (d) payments are non-refundable, and are without any right of set-off or cancellation. All taxes and duties attributable to this Agreement (except taxes relating to Zietra’s income) including but not limited to sales, use, value-added, excise, franchise or any other tax assessed by local, state or federal authorities, shall be borne by you. You shall reimburse Zietra for any such taxes and duties paid by Zietra, which may be included as a line item in your invoice. Performance of Services will at all times be subject to the approval of Zietra’s credit department and Zietra may at any time decline to provide or deliver any Services except upon receipt of payment or upon terms and conditions or security satisfactory to Zietra.
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1. Services and Feedback. As between you and Zietra, Zietra is, and shall be, the sole and exclusive owner of all Intellectual Property Rights in and to: (a) the SDK and the Zietra Services; (b) any Feedback; and (c) any and all improvements, derivative works, modifications, and/or customizations of/to any of the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Zietra to ensure and/or provide Zietra (or a Zietra Affiliate, defined below) the ownership rights set forth in the preceding sentence. The Services (including any copies) are only licensed, and not sold, to you under this Agreement, and any rights not express granted under this Agreement are hereby reserved by Zietra and its licensors.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to any works of authorship, inventions, databases, know-how, technology, or other intellectual property, and includes, but is not limited to, patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Zietra Affiliate” means associated solutions of Vibing World Inc., it’s affiliates Vibing Ticket Inc., Canada and Vibing Techcloud Pvt. Ltd, India
“Feedback” means any ideas, suggestions, or similar feedback of or about the Services that you (or someone on your behalf) provides to Zietra or a Zietra Affiliate.
6.2. Zietra-Enabled Product. As between you and Zietra, you are the sole and exclusive owner of all Intellectual Property Rights in and to your Zietra-Enabled Product.
6.3. Zietra Trademarks. The trademarks, trade dress, service marks, domains, logos and distinctive brand features (collectively, “Marks”) associated with the Services, are owned by Zietra and/or our licensors and may be protected by applicable Intellectual Property Rights laws and treaties. All other Marks appearing in/on the Services are the Marks of their respective owners. Notwithstanding anything in this Agreement to the contrary, Customer will not, at any time during or after the term of this Agreement: (i) claim any right, title, or interest in or to, attempt to register in any jurisdiction, or do anything that may adversely affect the validity or enforceability of, any of Zietra’s Marks; and/or (ii) adopt, register or use in any manner whatsoever, without Zietra’s prior express written consent, any name, mark, logo, title, expression, word, symbol or combination thereof, which in any way imitates, resembles, tarnishes, dilutes, or is similar to any of Zietra’s Marks.
6.4. Trademark Cross-License. Subject to the terms and conditions of this Agreement, including any branding or messaging guidelines for Zietra-Enabled Products that Zietra prescribes publicly or otherwise provides to you, each party hereby grants to the other party a non-exclusive, royalty-free, personal, non-assignable, non-transferable, worldwide license, during the term of this Agreement, to use the granting party’s business name (i.e., “Zietra” and the business name identified on your Customer Account registration, respective) and any logo, design or other branding such granting party provides to the other party (collectively, “Licensed Trademarks”) solely to (i) identify that you are an authorized licensee of Zietra and/or the Services, and that your Zietra-Enabled Product is designed to interact with the Services, provided that you may not state or imply that Zietra endorses or has tested your Zietra-Enabled Products; and (ii) provide a link to the other party’s website. As a non-exhaustive example of permitted usage, you may reproduce Zietra’s Licensed Trademarks in your Zietra-Enabled Product and marketing materials therefor, and Zietra may reproduce your Trademarks in its marketing and investor relations materials, including on both parties’ websites. Each party shall maintain the other party’s Licensed Trademarks exactly as provided by the owner thereof and no party shall make any alteration of another party’s Licensed Trademarks. Each party shall supply the other party with suitable specimens of its use of the other party’s Licensed Trademark(s) upon reasonable notice, and shall remedy any deficiencies in its use of any of the Licensed Trademark(s) within thirty (30) days’ notice from the other party. Except as prohibited by law, each party agrees that it will do nothing inconsistent with the other party’s ownership of the Licensed Trademark(s). Each party agrees that its use of the other party’s Licensed Trademark(s), as well as any goodwill arising therefrom, shall inure solely to the benefit of (and be on behalf of) the other party. A party may revoke the foregoing license granted in this subsection, without terminating this Agreement as a whole, by providing notice of revocation to the other party if the other party has breached a material term of this Section (Trademark License) and failed to cure such breach within thirty (30) calendar days of the Licensed Trademark owner’s notice reasonably detailing such breach.
7. END USER CONSENT
7.1. Customer shall obtain any and all necessary consents under applicable law, including, without limitation, privacy laws, to share with Zietra, and also to enable Zietra, to collect, use, process, reformat, encode, reshape, transform, impute, display and/or copy data, including without limitation, the Raw Data, access an End User’s Device, and any other relevant information instructed by the Customer.
7.2. Customer shall comply with any and all transparency-related obligations (including, without limitation, displaying any and all relevant and required privacy notices or policies) and shall have any and all required legal bases in order to collect, process and transfer to Zietra the End User data and to authorize the processing by Zietra of the End User data which is subject to this Agreement.
8. RAW DATA
8.1. Customer-Provided Raw Data. To the extent you may make available to Zietra or a Zietra Affiliate any Raw Data including, but not limited to user’s response to engagement attempt and user’s behavior in your product (“Engagement Data” or “Customer Raw Data”), you are solely responsible for it and the consequences of making it available. You retain all ownership rights you may have in the Engagement Data or Customer Raw Data you make available, subject to the below Customer Raw Data License.
When you make available Customer Raw Data to Zietra or a Zietra Affiliate, or permit either to collect it through one or more Zietra-Enabled Product Devices, you hereby grant, and agree to grant to each of Zietra and all Zietra Affiliates a non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up, sub-licensable (through multiple tiers of sublicenses), worldwide right and license to store, reproduce, display (publicly or otherwise), perform (publicly or otherwise), distribute, modify, create derivative works of, and otherwise use and exploit such Customer Raw Data order to provide the services or in further connection with our business (collectively, the “Customer Raw Data License“).
You acknowledge and agree that: (a) we have the right to arrange the Engagement Data or Customer Raw Data and User Insights in any way we desire; and (b) you are not entitled to any compensation or other payment from us in connection with the use of the Engagement Data or Customer Raw Data and/or User Insights. Notwithstanding the above, we will not make use of any of Raw Data you provide us in a manner that is inconsistent with this Agreement and our DPA. We reserve the right, but do not have the obligation, to review and remove from the Services any Raw Data and/or User Insights for any reason and at any time, including Raw Data that we believe violates this Agreement, the law, and/or our policies.
8.2. Data Backup. You are solely responsible for backing up any User Insights or other information exchanged between Zietra and you. Zietra may, but is not obligated to, retain such information. Although Zietra utilizes commercially reasonable measures to protect such information, there are inherent security limitation on the Internet for which Zietra shall not be liable. Zietra operates its Services through networks within and outside of the United States, including but not limited to Canada & India, and you expressly agree that any information exchanged between us and you may be hosted, stored and/or transferred among such jurisdictions.
9. THIRD PARTIES
9.2. Third Party Software. The Services are integrated with third-party software and applications and include third-party software that may be subject to the terms and conditions imposed by the licensors of that third-party software (“Third-Party Terms”). You agree to abide by such Third-Party Terms. As a convenience, we may post links to such Third-Party Terms, but assume no responsibility for the accuracy, completeness or timeliness of such links. If there is a conﬂict between any Third-Party Terms and the terms of this Agreement, the Third-Party Terms shall prevail in connection with the related third-party software.
10. TERM AND TERMINATION
10.1. Term. This Agreement commences on the Effective Date and continues in full force and effect until it terminates in accordance with this Agreement.
10.2. Customer Accounts. This Agreement will continue for 12 (twelve) months (as of the Effective Date), unless Zietra has agreed to an alternative duration of your Customer Account (“Initial Term”). Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms of equal duration (each, a “Renewal Term”), unless you notify us at least 45 (forty-five) days in advance of such renewal that you do not wish to renew the Agreement, in which event this Agreement shall terminate at the end of the then-current Initial Term or Renewal Term (as applicable). You may provide such notice through your Customer Account or by emailing us at firstname.lastname@example.org.
Additionally, we reserve the right to suspend your Account at any time that we would otherwise have the right to terminate this Agreement, in which case we will notify you by reasonable means available to us (such as through the Services or by email via your contact information associated with your Customer Account). If we suspend your Customer Account, or terminate this Agreement due to your breach hereof, you will not be able to create another Customer Account without our permission. If your Customer Account is suspended or deactivated, the Services will no longer work with your Zietra-Enabled Products.
Moreover, if an injunction prevents the use of the Services, or in the event Zietra reasonably believes that the granting of such injunction is likely, Zietra may, at its option and expense, and as your sole and exclusive remedy, either: (i) substitute a non-infringing equivalent; (ii) modify the affected part of the Services so that it no longer infringes but remains functionally equivalent; (iii) obtain for you the right to continue use of the Services (or part thereof); or (iv) if none of the foregoing is commercially practicable in Zietra’s sole discretion, terminate this Agreement upon written notice.
10.3. Termination for Breach. Each party may terminate this Agreement upon notice, for the other party’s breach under this Agreement that remains uncured thirty (30) days following the non-breaching party’s notice reasonably detailing such breach, provided that with respect to your breach of Zietra’s Intellectual Property Rights, your breach of the Customer License, and/or your breach of any confidentiality obligation herein, no such cure period shall apply and Zietra shall have the right to terminate this Agreement immediately upon notice.
10.4. Starter Plan Term. Notwithstanding the aforesaid, Starter Plan term will be for 30 days (Starter Plan term) and will end automatically unless before the end of the Starter Plan Term, Zietra has agreed to an alternative duration of your Customer Account in writing and all the needed agreements were signed by you.
10.5. Termination for Convenience. Zietra may terminate this Agreement for any or no reason, by given at least 30 days prior written notice to you.
10.6. Termination for Breach. Each party may terminate this Agreement upon notice, for the other party’s breach under this Agreement that remains uncured thirty (30) days following the non- breaching party’s notice reasonably detailing such breach, provided that with respect to your breach of Zietra’s Intellectual Property Rights, your breach of the Customer License, and/or your breach of any confidentiality obligation herein, no such cure period shall apply and Zietra shall have the right to terminate this Agreement immediately upon notice.
10.7. Termination for Bankruptcy. Each party may terminate this Agreement upon notice if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any similar proceeding relating to insolvency, receivership or reorganization and if such petition or proceeding is not dismissed within sixty (60) calendar days of filing. If such proceeding is involuntary and is contested in good faith, this Agreement shall terminate only after the passage of one hundred twenty (120) calendar days without the dismissal of such proceeding. You may terminate this Agreement upon notice in response to Zietra’s notice of substantive reduction in performance or functionality as set forth in Section 16.2. Either party may terminate this Agreement upon notice to the extent such party ceases its business operations to which this Agreement relates. Either party may terminate this Agreement upon 45 (forty-five) days’ notice in advance of any Renewal Term, which termination shall be effective upon the end of the then- current Initial Term or Renewal Term.
10.8. Effect of Termination. Termination of this Agreement shall not affect any rights or obligations that accrued as of the effective date of termination. Upon termination of this Agreement: (a) the Customer License automatically terminates, you shall cease all use of the Services, and you shall uninstall the SDK from all Zietra-Enabled Products; (b) your Customer Account shall be deactivated; (c) you shall (as directed by Neura) return, destroy and/or permanently delete all Zietra’s Confidential Information within your possession or control; and (d) any outstanding payment obligations shall become immediately due and payable. Zietra shall in any event be entitled to disable remotely the Services.
10.9. Survival. Any provision in this Agreement that is stated (or by its nature ought) to survive termination, shall survive, as shall Section 6 (Intellectual Property Ownership), Section 11 (Indemnity), and Sections 0 (Confidentiality) through 17 (General) inclusive.
You shall defend, indemnify and hold harmless Zietra, Zietra Affiliates, and our and their respective oﬃcers, directors, employees, licensors, assigns, partners and agents (collectively, “Zietra Parties“) from and against any and all liabilities, claims, actions, damages, obligations, losses, demands, costs and expenses (including, without limitation, reasonable legal and accounting fees), which Zietra incurs or suffers arising from, or related to: (a) your Zietra-Enabled Product, including, but not limited to, claims that your Zietra-Enabled Product (other than the SDK therein, as permitted under this Agreement) and/or any Raw Data you make available to Zietra infringes, misappropriates, or violates any third party’s copyright, trade secret, trademark, patent, and/or other proprietary or privacy right, and/or any applicable law or regulation; (b) your use or misuse of the Services; and/or (c) your breach or alleged breach of this Agreement and/or the DPA.
12.1. Customer Obligations. Customer hereby warrants and represents that it will: (i) provide all appropriate notices, (ii) obtain all required informed consents and/or have any and all ongoing legal bases, (iii) comply at all times with any and all applicable privacy and data protection laws and regulations (including, without limitation, the EU General Data Protection Regulation (“GDPR”)), for allowing Zietra to use and process the data in accordance with this Agreement (including, without limitation, the provision of such data to Zietra (or access thereto) and the transfer of such data by Zietra to its Affiliates, subsidiaries and subcontractors, including transfers outside of the EEA), for the provision of the Services and the performance of this Agreement, and (iv) not circumvent any privacy features (e.g., an opt-out) that are part of the Services. Customer shall also notify its End Users about the use of the SDK in the Zietra-Enabled Product, in accordance with the Zietra terms of agreement formalized at the time of purchase.
12.2. Data Processing Agreement. To the extent that Customer needs a data processing agreement, Customer shall request Zietra’s Data Processing Agreement (“DPA”) by emailing us at email@example.com and return it signed to Zietra as described therein.
12.3 Liability. In the event Customer fails to comply with any data protection or privacy law or regulation, the GDPR and/or any provision of the DPA, and/or fails to return an executed version of the DPA to Zietra, then: (a) to the maximum extent permitted by law, Customer shall be solely and fully responsible and liable for any such breach, violation, infringement and/or processing of personal data without a DPA by Zietra and Zietra’s Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents); and (b) in the event of any claim of any kind related to any such breach, violation or infringement and/or any claim related to processing of personal data without a DPA, Customer shall defend, hold harmless and indemnify Zietra and Zietra’s Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees.
12.5. Age Restriction. No Customer under 18 years of age is permitted to access, use or connect any Device to our Service or grant any Permission for a Zietra-Enabled Product.
13.1. “Confidential Information” means information that Zietra provides or makes available to you hereunder which, if in written form, is marked “confidential” or with a similar legend before being furnished, or if disclosed orally or visually is identified as such prior to disclosure and confirmed in writing within thirty (30) days of disclosure, or which a reasonable person familiar with the relevant industry should understand to be confidential. Without limiting the generality of the foregoing, Confidential Information shall include Zietra’s SDK, source code, User Insights, product plans, designs, schematics, development know-how, trade secrets, techniques, processes, procedures, algorithms, formulae, costs, prices, finances, marketing plans, business opportunities, research, contracts and customer lists, whether or not designated as confidential information upon disclosure. Confidential Information may include information of a third party that is in Zietra’s possession and is disclosed to you under this Agreement. Confidential Information shall not, however, include any information that (i) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by Zietra to you; (ii) becomes publicly known or made generally available without a duty of confidentiality after disclosure by Zietra to you through no wrongful action or inaction by you; (iii) is in your rightful possession without confidentiality obligations at the time of disclosure by Zietra to you as shown by your then-contemporaneous written files and records kept in the ordinary course of business; (iv) is obtained by you from a third party without an accompanying duty of confidentiality without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by you without use of or reference to Zietra’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.
13.2. You agree to exercise at least the same degree of care to safeguard Zietra’s Confidential Information as you would exercise to safeguard the confidentiality of your own Confidential Information, but not less than reasonable care. You agree not to (i) disclose to any third party (other than permitted Customer Personnel) any Zietra Confidential Information without Zietra’s prior written consent or (ii) use Zietra’s Confidential Information for any purpose not specified in this Agreement. You agree that all Customer Personnel having access to Zietra’s Confidential Information under this Agreement will abide by the obligations set forth in this Section (Confidentiality) pursuant to a written confidentiality agreement or as a condition of their employment or engagement and have a bona fide need to know such Confidential Information. You agree to notify Zietra promptly of any unauthorized disclosure of Zietra’s Confidential Information and to assist Zietra in remedying any such unauthorized disclosure. You may disclose Zietra’s Confidential Information pursuant to a requirement of a governmental agency or law so long as you provide Zietra with notice, if legally permissible, of such required disclosure prior to any such disclosure and you use best efforts to prevent the disclosure, or if disclosed, the Confidential Information is disclosed only to the extent required and for the limited purpose specified and otherwise retains its confidential status for all other purposes. In case of conflict between this Section (Confidentiality) and any other non-disclosure agreement you may have entered into with Zietra, this Section (Confidentiality) shall govern with respect to all matters pertaining to this Agreement.
14. WARRANTY DISCLAIMERS
THE SDK, ZIETRA SERVICES, RAW DATA, USER INSIGHTS, ZIETRA WEBSITE AND ANY OTHER ZIETRA INFORMATION OR ITEMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY ZIETRA AND ITS SUPPLIERS AND LICENSORS.
WE AND OUR SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SDK, NEURA SERVICES, RAW DATA, USER INSIGHTS, NEURA WEBSITE AND ANY OTHER NEURA INFORMATION OR ITEMS WILL OPERATE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THEY ARE FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT WE WILL CORRECT ANY ERRORS IN THE SAME. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES, HARM, DAMAGE, OR LOSS TO YOU OR ANY THIRD PARTY, WHETHER WITHIN OR OUTSIDE THE SCOPE OF THE SERVICES THAT MAY RESULT FROM TECHNICAL PROBLEMS, INCLUDING WITHOUT LIMITATION TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS, OR IN CONNECTION WITH ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS. YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK. WE ARE NOT RESPONSIBLE FOR AND ARE NOT OBLIGATED TO CONTROL THE ACTIONS OR INFORMATION (INCLUDING CONTENT) OF OUR USERS OR OTHER THIRD PARTIES, INCLUDING ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF RAW DATA OR USER INSIGHTS AND/OR USE OR MISUSE OF THE SERVICES BY ANOTHER NEURA-ENABLED PRODUCT.
YOU HEREBY IRREVOCABLY RELEASE ALL ZIETRA PARTIES FROM ANY CLAIM, COMPLAINT, CAUSE OF ACTION, CONTROVERSY, OR DISPUTE (EACH, A “CLAIM”) AND DAMAGES AND LOSSES, KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY THIRD PARTIES. YOU HEREBY IRREVOCABLY WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE §1542, OR ANY OTHER SIMILAR APPLICABLE STATUTE OR LAW OF ANY OTHER JURISDICTION, WHICH SAYS THAT: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL ZIETRA OR ANY ZIETRA AFFILIATES, OR OUR RESPECTIVE LICENSORS OR SUPPLIERS, BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
THE COMBINED AGGREGATE LIABILITY OF ZIETRA AND ALL ZIETRA AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ZIETRA HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THHE CLAIM.
THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (i) EVEN IF ZIETRA OR A ZIETRA AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (ii) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (iii) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY).
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
16. CHANGES TO THE AGREEMENT AND SERVICES
16.1. Agreement Changes. Subject to any terms set forth in a custom Customer Account addendum, we are entitled to revise this Agreement at any time. We will notify you of any revisions with reasonable notice, at our sole discretion, through your Customer Account, the Services, by e-mail, or using any combination of the foregoing or other reasonable means. The revised version will be effective at the time we provide notice thereof (or at a later date specified in such notice). However, if the revised Agreement contains a material and adverse change (that is, it expands Customer’s obligations and liabilities in a material way), then such change will be effective thirty (30) days following our notice to you or upon your renewal of your Customer Account, whichever is later. If you do not agree to the revised Agreement, you will not be bound by the revisions if you close your Customer Account and cease all use of the Services prior to the revisions becoming effective.
16.2. Services Changes. The Services may change frequently, and their form and functionality may change without prior notice to you, provided that Zietra will provide you with notice of any substantive reduction in performance or functionality, in which event, as your sole and exclusive remedy, you shall have the option to terminate this Agreement with written notice to Zietra within thirty (30) days from such notice. We may also from time to time, as we see fit, develop and provide updates for the Services. This may include upgrades, modifications, bug fixes, patches, and other error corrections and/or new features (collectively, “Updates”). You expressly consent to such any automatic Updates. Further, you agree that this Agreement (and any additional modifications of the same) will apply to any and all Updates to the Services. We have no obligation to provide any Updates or to continue to provide or enable any particular feature or functionality of any of the Services.
17.1. Entire Agreement. This Agreement, including any document incorporated by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between the parties with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Zietra website. Any non-negotiated terms or conditions (whether printed, hyperlinked, or otherwise) in a any orders, invoices, or similar transactional documents issued or submitted under this Agreement, which purport to modify or supplement this Agreement, shall be void and of no effect, and are hereby rejected.
17.2. Order of Precedence. To the extent of any conflict between a provision of this Agreement and that of any document incorporated herein by reference, the former shall prevail, except in the limited circumstance where the parties have expressly identified by section number a term herein that they both agree to modify pursuant to a custom Customer Account addendum, in which event such modification shall apply with respect to that particular custom Customer Account addendum.
17.3. Governing Law. This Agreement (including its validity) shall be governed by, and construed in accordance with, the laws of the State of California, USA, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods (UNCISG) shall not apply to this Agreement.
17.4. Dispute Resolution. All claims, controversies, and/or disputes (collectively, “Disputes“) between you and Zietra will be subject to the exclusive jurisdiction of the competent courts within the geographies of operations for both parties and each party consents to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
17.5. Equitable Relief. Notwithstanding anything in this Agreement to the contrary, Zietra and any Zietra Affiliate may seek equitable relief, at any time, in any court worldwide of competent jurisdiction.
17.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
17.7. Basis of the Bargain. The parties acknowledge that Zietra has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
17.8. Export Compliance. Customer represents and warrants that: (a) it is not a resident of (or will use any of the Services in) a country that the U.S. government has embargoed for use of the Services, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (Export Compliance), in whole or in part, or otherwise violates any Export Control Laws (defined below) in connection with the Services, Customer agrees to indemnify and hold harmless all Zietra Parties for any fines and/or penalties imposed upon them as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control laws and regulations applicable to contractors and/or Zietra, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
17.9. Assignment. You may not assign this Agreement (or any rights or obligations hereunder) without Zietra’s prior express written consent; provided, however, that you may, upon written notice to Zietra, assign this Agreement in whole to a successor-in-interest to all or substantially all of that portion of your business and assets related to your Zietra-Enabled Products. Zietra may assign this Agreement (or any rights or obligations hereunder) without restriction or obligation. Furthermore: (a) at Zietra’s sole discretion, any Zietra obligation hereunder may be performed (in whole or in part), and any Zietra right (such as invoice and payment rights) or remedy hereunder may be exercised (in whole or in part), by a Zietra Affiliate; and (b) Zietra may subcontract the provision of the Services (in whole or in part) to any subcontractor, without restriction or obligation. Any unauthorized assignment shall be null and void, and shall be deemed a material breach of this Agreement. Subject to the foregoing, this Agreement binds and benefits each party and its respective successors and assigns.
17.10. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (for example, Zietra Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
17.11 Relationship. The parties under this Agreement are solely independent contractors, and neither is an employee, agent, partner or joint venturer of the other, and nothing in this Agreement shall be construed to create such a relationship between the parties. Nor shall either party have the power to bind the other, or incur obligations on the other’s behalf, without the other’s prior written consent.
17.12. Notices. All notices required or permitted under the Agreement will be in writing and will be deemed given: (i) when delivered personally; (ii) when sent by confirmed e-mail; (iii) ten (10) calendar days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (iv) one (1) calendar day after deposit with a commercial overnight carrier specifying next day delivery, with written verification of receipt; or (v) immediately upon an electronic communication method transmitted through your Zietra Customer Account.
17.13. Headings and Language. The headings used in this Agreement are for convenience of reference only and shall not in any way affect the interpretation of the provisions of this Agreement. The original of this Agreement has been written in English and the governing language shall be English. The use of the singular includes the plural and vice versa, as the context may require. You hereby irrevocably waive, to the maximum extent legally permitted, any law applicable to you requiring that the Agreement be localized to meet your language (as well as any other localization requirements) or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. This Agreement may be accepted by Customer electronically, and such electronic acceptance shall have the same force and effect as an original signature.
17.14. Remedies are Cumulative. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
17.15. Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by Zietra, the writing must be duly signed by an authorized representative of Zietra) and shall be valid only in the specific instance in which given.
17.16. Force Majeure. We shall not be liable for any failure to perform any obligation or provide any Services hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond our reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Services shall not be deemed within our reasonable control.
18. ZIETRA'S CONTACT INFORMATION
18.1. Any questions, complaints or claims with respect to the services provided by Zietra or its affiliates or should be directed to:
(please update as required)