Terms and Conditions

Last updated: October, 2024

Please read these Terms and Conditions (the “Terms”) carefully before using the ZiiZii Software (the “Software”) operated by Ziiware Inc. (“Ziiware”, “us”, “we”, or “our”).

Your access to and use of the Software is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Software.

By accessing or using the Software you agree to be bound by these Terms. If you disagree with any part of the terms, then you do not have permission to access the Software.

1. Communications

By creating an Account on our Software, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.

2. Subscriptions & Restrictions

• During the Subscription (as defined below), you may access and use the Software for your internal business purposes pursuant to these Terms.

• You receive no right to and shall not: (a) modify, create derivative works from, distribute, publicly display, or publicly perform, the Software; (b) sublicense or otherwise transfer any of the rights granted in Section 1; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Software; or (d) use the Software for Software bureau or time-sharing purposes or in any other way allow third parties to exploit the Software, including without limitation as software-as-a-Software.

3. Subscription Fees and Payment

• Some parts of the Software are billed on a subscription basis (“Subscription(s)”). You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set on a monthly basis.

• Your monthly subscription billing will begin on a date determined solely by Ziiware, but under no circumstances will billing begin later than sixty (60) days after signing up for the Software.

• A valid payment method, including ACH payment information, is required to process the payment for your Subscription. You shall provide Ziiware with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, you automatically authorize Ziiware to charge all Subscription fees incurred through your account to any such payment instruments.

• Should automatic billing fail to occur for any reason, Ziiware will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.

• Except when required by law, paid Subscription fees are non-refundable.

• If Ziiware does not receive payment for the Subscription, Ziiware may suspend the Subscription until Ziiware receives such payment in full. Ziiware may terminate any Software upon ten (10) days’ prior written notice to you if you fail to pay the charges for the Software in accordance with these Terms.

• Amounts due under these Terms are payable to Ziiware without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, Ziiware may require that you submit applicable Sales Taxes to Ziiware. However, the preceding sentence does not apply to the extent that you are tax exempt, provided you give us a valid tax exemption certificate within 30 days of your first Billing Cycle. Our failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 3.8. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, you shall separately pay us the withheld or deducted amount, over and above fees due.

• You will maintain accurate records regarding your use of the Software until one year following your last Billing Cycle. When requested, you will make such information available to us within ten (10) days following our written request. In addition, we may audit your use of the Software for compliance with these Terms, upon our written request, during your normal hours of business and upon reasonable advance notice. You agree to cooperate and assist with the audit including permitting electronic access to all relevant systems and records as we request. Any such audit shall not unreasonably interfere with the conduct of your business. If an audit reveals that your use of the Software is in breach of these Terms, then we may, at our option: (i) charge you the applicable additional fees; (ii) require you to take commercially reasonable actions for you to be in compliance with these Terms; or (iii) terminate your Subscription upon no less than ten (10) days’ notice to you, if you fail to cure within thirty (30) days the breach of your use of the Software following written notice to you after completion of such audit. If we choose to charge additional fees, you will pay such additional fees promptly upon receipt of Ziiware’s invoice. If the audit reveals an underpayment you agree to pay all of our out-of-pocket costs and expenses for undertaking the audit promptly upon receipt of our invoice.

4. Fee Changes

• Ziiware, in its sole discretion and at any time, may modify the Subscription fees for the Subscription. Any Subscription fee change will become effective at the end of the then-current Billing Cycle.

• Ziiware will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective.

• Your continued use of the Software after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.

5. Content

• Our Software allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Content”). You are responsible for the Content that you post on or through the Software, including its legality, reliability, and appropriateness.

• By posting Content on or through the Software, you represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and (ii) that the posting of your Content on or through the Software does not violate any laws including privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to breach this Section 4.2.

• You retain any and all of your rights to any Content you submit, post or display on or through the Software and you are responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third party posts on or through the Software. However, by posting Content using the Software you grant us the right and license to use, modify, perform, display, reproduce, and distribute such Content on and through the Software.

• Ziiware has the right but not the obligation to monitor and edit all Content provided by users.

• Ziiware shall not: (a) access, process, or otherwise use your Content other than as necessary to operate the Software; or (b) give the Content access to any third party, except Ziiware’s subcontractors that have a need for such access to operate the Software and are subject to a reasonable written agreement governing the use and security of the Content.

6. Accounts

• When you create an account with us, you represent and warrant that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Software.

• You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Software or a third-party Software. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

7. S. Government Restricted Rights and Technology Export

• This Section 1 applies to all acquisitions of the Software and related documentation by or for the United States federal government, including by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the Federal government. The Software and related documentation were developed at private expense and are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 (for civilian agencies) and 48 C.F.R. §227.7202 (for Department of Defense agencies), as applicable. Consistent with and subject to 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7702-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only such rights as are granted to all other end-users pursuant to the terms herein. Any provisions of this Agreement inconsistent with federal procurement regulations or other federal law are not enforceable against the U.S. Government. Unpublished rights are reserved under the copyright laws of the United States. You shall not remove or deface any restricted rights notice or other legal notice appearing in the Software or on any packaging or other media associated with the Software. This Section 7.1 does not grant you any rights not specifically set forth in this Agreement, including without limitation any right to distribute the Software to the United States federal government.

• You shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, you shall not permit any third party to access or use the Software in, or export the Software to, a country subject to a United States embargo (without limitations the Crimea Region of Ukraine, Cuba, Iran, North Korea, and Syria).

8. Intellectual Property

• The Software and its original content (excluding Content provided by users), features and functionality are and will remain the exclusive property of Ziiwareand its licensors. The Software is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or Software without the prior written consent of Ziiware.

• Ziiware has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that you, your clients, or other users give us, and nothing in these Terms or in the parties’ dealings arising out of or related to these Terms will restrict our right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. Feedback will not be considered a trade secret of yours. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of our products or services.)

• Software offered by Ziiware includes or was developed in conjunction with the open-source components listed in Schedule A (each an “Open-Source License”). A copy of the Open-Source License can be found on the corresponding websites set out therein. Any use of the Open-Source Components by you is governed by, and subject to, the terms and conditions of the Open-Source License(s). Notwithstanding the foregoing, if you are using the Software in the form provided to you, in accordance with your permitted scope of use, with no distribution of software to third parties, then none of these Open-Source Licenses impose any obligations on you beyond what is stated in these Terms.

9. Confidential Information

• “Confidential Information” refers to the following one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 10 business days; (c) any source code disclosed by Ziiware and any names of actual or potential customers disclosed by Ziiware, whether or not marked as confidential; and (d) any other non-public, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.

• Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and is subject to a written agreement with Recipient with nondisclosure terms no less restrictive than those of this Section 2; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest, limit, or protect such required disclosure, at Discloser’s expense.

• Recipient agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in Section 2; (b) it would be difficult to determine the damages resulting from its breach of Section 9.2, and such breach would cause irreparable harm to Discloser; and (c) a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that Discloser prove actual damage or post a bond or other security. (This Section 9.3 does not limit either party’s right to injunctive relief for breaches not listed.)

• The obligations of this Article 9 will survive termination for any reason of your Subscription. Upon termination of your Subscription, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.

• Upon termination of your Subscription for any reason, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof. However, the preceding sentence does not apply to Confidential Information to the extent incorporated into the Software object code. This Article 9 does not transfer ownership of Confidential Information or grant a license thereto. Discloser retains all right, title, and interest in and to all Confidential Information, except as set forth in Section 1 and Section 2.2 above.

• Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of these Terms:

• An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made: (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

• An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

10. Links To Other Web Sites

• Our Software may contain links to third party web sites or Software that are not owned or controlled by Ziiware.

• Ziiware has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or Software. We do not warrant the offerings of any of these entities/individuals or their websites.

• You acknowledge and agree that Ziiware shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or Software available on or through any such third party web sites or Software.

• We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or Software that you visit.

11. Term and Termination

• These Terms (a “Subscription Term”) will commence on the date stated on the ZiiZii Subscription Sign Up form and continue for a period of one (1) year (a “Renewal”). Thereafter, the Subscription Term will renew for successive one (1) year periods, unless either party refuses such renewal by written notice 60 or more days before the renewal date.

• We may terminate or suspend your account and bar access to the Software immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.

• Termination for Cause. You may terminate these Terms for Ziiware’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless we first cure such breach, or effective immediately if the breach is not subject to cure.

• Upon termination of your Subscription, you shall cease all use of the Software and delete, destroy, or return all copies of the documentation in your possession or control.

• All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

12. Indemnification

You agree to defend, indemnify and hold harmless Ziiware and its affiliates, licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees), resulting from or arising out of a) your use and access of the Software, by you or any person using your account and password; b) a breach of these Terms, or c) Content posted on the Software.

13. Limitation Of Liability

• ZIIWARE’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE FEES PAID TO ZIIWARE UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE LIMIT OF LIABILITY IN THE PRECEDING SENTENCE IS CUMULATIVE AND NOT PER-INCIDENT.

• IN NO EVENT WILL EITHER PARTY, BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

• THE LIABILITIES LIMITED ABOVE IN THIS ARTICLE 13 APPLY TO THE BENEFIT OF EACH PARTY’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF ZIIWARE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

14. Warranty Disclaimer

• Your use of the Software is at your sole risk. The Software is provided on an “AS IS” and “AS AVAILABLE” basis. The Software is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement of intellectual property rights, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade.

• Ziiware its affiliates, and its licensors do not warrant that a) the Software will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Software is free of viruses or other harmful components; or d) the results of using the Software will meet your requirements.

15. Independent Contractors

The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no employee or contractor of ours will be an employee of yours.

16. Force Majeure

No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by epidemics, pandemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.

17. Governing Law

These Terms shall be governed and construed in accordance with the laws of the United States, and the State of Delaware, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties’ consent to the personal and exclusive jurisdiction of the federal and state courts of Kent County, Delaware for all cases and controversies arising out of or related to this Agreement, including without limitation tort cases.

18. No Waiver; Severability

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Software, and supersede and replace any prior agreements we might have had between us regarding the Software.

19. Assignment & Successors.

Customer may not assign this Agreement or any of its rights or obligations hereunder without Ziiware’s express written consent. Except to the extent forbidden in this Section 15.6, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

20. Changes

• We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

• By continuing to access or use our Software after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Software.

Contact Us

If you have any questions about these Terms, please contact us.

Copyright © 2024 Ziiware Inc. All rights reserved.

SCHEDULE A

OPEN-SOURCE COMPONENTS