1.1 “Customer Offering(s)” means all Customer software, software as a service (SaaS) or other website offerings listed on the Cover Page.
1.2 “Confidential Information” shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
1.3 “ChurnZero Software” means the ChurnZero proprietary code library, including the Embed Codes, that combined with Customer Offering(s), is designed to (a) allow for the monitoring of user behavior and enable certain analysis to be provided as part of the ChurnZero Services, and (b) enable end users of Customer’s services to communicate with Customer.
1.4 “ChurnZero Services” shall mean the services offered by ChurnZero and ordered by Customer as identified on the Cover Page that provide for analytics and actions relating to Customer’s customers usage of Customer Offerings.
1.5 “ChurnZero Technology” shall mean any of ChurnZero’s technology, software, library of codes (ChurnZero Software), processes, tools, and business methods used to provide the ChurnZero Services.
1.6 “Embed Code” shall mean the object code provided by ChurnZero and identified as Embed Code that can be embedded into or otherwise combined with a Customer Offering that can be used to enable the collection of certain information from end-users to be accessed through the ChurnZero Services and/or to allow for direct communications by Customer to an end-user through the Customer Offering.
2. ACCESS AND USE
2.1 Provision of Access. Subject to the terms and conditions contained in this Agreement, ChurnZero will provide the ChurnZero Services to Customer and its Authorized Users. ChurnZero shall provide to Customer any necessary access protocols and documentation to access and use the ChurnZero Technology used to provide the ChurnZero Services.
2.2 Usage Restrictions. Customer will not (a) create any derivative product of the ChurnZero Technology, except as specifically authorized in this Agreement; or (b) allow third parties other than Authorized Users to gain access to the ChurnZero Services. “Authorized Users” shall mean those employees of Customer who access the ChurnZero Technology for Customer’s internal business purposes. Customer agrees not to use the Embed Code, the ChurnZero Services or any information obtained through the ChurnZero Services for any unlawful or unauthorized purpose.
2.3 Service Rules and Guidelines. Customer and all Authorized Users shall use the ChurnZero Services solely for its internal purposes as contemplated by this Agreement and shall not use the ChurnZero Services to: (a) track or collect information from its end-users in a manner that violates Customer’s privacy policies or is otherwise illegal; (b) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (c) interfere with or disrupt the integrity or performance of the ChurnZero Service or the data contained therein; (d) attempt to gain unauthorized access to the ChurnZero Technology; or (e) interfere with another user’s use and enjoyment of the ChurnZero Service.
3. DEVELOPMENT LICENSE.
3.1 Development License. Subject to the terms and conditions of this Agreement, ChurnZero hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, license, during the Term of this Agreement to copy, integrate, display, perform, and use the ChurnZero Software to integrate the Embed Codes into, or otherwise combine the Embed Codes with, the Customer Offering(s). Customer will not decompile, disassemble, reverse engineer or otherwise attempt to reconstruct the ChurnZero Technology, including attempting to obtain or perceive the source code from which any component of the ChurnZero Technology is compiled or interpreted, including any Embed Code.
3.2 Distribution License. Subject to Customer’s compliance with the terms and conditions of this Agreement, ChurnZero hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, license, during the Term of this Agreement to: (a) to reproduce an unlimited number of Embed Codes solely for physical incorporation in the Customer Offering and to distribute those to Customer’s customers; and (b) to sublicense the Embed Codes, through multiple distribution channels, solely as incorporated in the Customer Offering and in no event on a “standalone” or independent basis.
4.1 Customer Data. Customer may provide to ChurnZero certain data and information about Customer and its customers (the “Customer Data”). The Customer Data may be provided through the Embed Code or such other means that are accommodated by the ChurnZero Technology. Customer owns all such Customer Data and ChurnZero obtains no ownership in any Customer Data under the terms of this Agreement. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of the Customer Data.
4.2 Use of Customer Data. Customer hereby grants to ChurnZero a limited, non-exclusive, non-transferable right and license to use the Customer Data for the limited purposes of: (a) performing ChurnZero’s obligations hereunder; and (b) analyzing Customer’s use of the ChurnZero Service (including the Customer Data) to improve the ChurnZero products and offerings so long as such analyses do not personally identify Customer, an individual, or any specific entity.
4.3 ChurnZero Content. The materials, information and content available through the ChurnZero Software, including the De-Identified Content, other than Customer Data contained therein (collectively, the “ChurnZero Content”) are proprietary to ChurnZero and should be considered ChurnZero’s confidential information. Subject to the terms and conditions herein, ChurnZero hereby grants Customer a limited, non-exclusive, non-transferable license to use, display and reproduce the ChurnZero Content solely for Customer’s internal business use and for no other purpose.
4.4 Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order to access the ChurnZero Services. ChurnZero will use industry standard means to protect the Customer Data from unauthorized access. Customer shall have the ability to export Customer Data out of the ChurnZero Services and is encouraged to make its own back-ups of the Customer Data. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer acknowledges and agrees that ChurnZero will have no obligation to archive to back-up Customer Data, nor will ChurnZero have any liability for any loss or corruption of Customer Data, nor will ChurnZero have any obligation under this Agreement to retain any Customer Data after the expiration or termination of the Access Term.
5. PROPRIETARY RIGHTS.
5.1 ChurnZero Technology and Proprietary Rights. Subject to the rights granted in this Agreement, ChurnZero and/or its licensors (if any) retain all right, title and interest in and to the ChurnZero Technology, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing. Customer shall have no rights to the ChurnZero Services or the ChurnZero Technology for any purposes beyond the scope of the rights granted in this Agreement. All rights not expressly granted to Customer under this Agreement are hereby reserved.
5.2 Customer Offering(s) and Proprietary Rights. Subject to the rights granted in this Agreement, Customer retains all right, title and interest in and to any Customer Offering it may develop, exclusive of all and any ChurnZero Technology. ChurnZero acknowledges that it neither owns nor acquires any additional rights in and to the Customer Offering(s).
6.1 Confidentiality. Each Party agrees that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party further agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, except as necessary to carry out its obligations and rights under this Agreement, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (d) to return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
6.2 Exceptions. The foregoing confidentiality obligations shall not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient without any use of or by persons who have access to the other Party’s Confidential Information; or (f) is approved in writing for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given notice to the other Party and shall have provided such assistance as may be reasonably requested to limit such disclosure.
7. WARRANTIES; EXCLUSION OF LIABILITIES.
7.1 ChurnZero Warranties. ChurnZero hereby represents and warrants that (a) it will use its reasonable efforts during the Term to make the ChurnZero Services available twenty-four hours a day, seven days a week; and (b) it uses commercially reasonable efforts to ensure the computing environments used by ChurnZero to provide the ChurnZero Technology are free from all generally-known viruses, worms, Trojans and other “malware,” and that ChurnZero has deployed antivirus software.
7.2 Customer Warranties. Customer hereby represents and warrants that it has all rights necessary to permit ChurnZero to perform its obligations and exercise its rights with respect to the Customer Data as contemplated by this Agreement, including all necessary permissions and consents from end users of the Customer’s services to collect, use and disclose the Customer Data, as contemplated by this Agreement. The forgoing expressly includes any applicable obligations under GDPR or similar regulations, it being understood that, with respect to the Customer Data, Customer is the Data Controller (or equivalent) and ChurnZero is the Data Processor (or equivalent). Customer further covenants that it shall be solely responsible for the Customer Offering(s) and the consequences of their use, and that ChurnZero shall have no liability with respect to any Customer Offering(s).
7.3 General Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOTH PARTIES DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR QUIET ENJOYMENT, AND THE CHURNZERO TECHNOLOGY, THE CUSTOMER OFFERING(S), AND CHURNZERO SERVICES ARE PROVIDED “AS IS”.
7.4 Exclusions of Remedies; Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO CHURNZERO BY COMPANY UNDER SECTION 8.1 DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. The Parties acknowledge and agree that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of this Agreement, and that, absent these disclaimers, exclusions and limitations of liability, the terms of this Agreement, including, the economic terms, would be substantially different.
8.1 Fees. Customer shall pay to ChurnZero, without offset or deduction, the amounts set forth on the Cover Page, which amounts shall be due and payable within thirty (30) calendar days after delivery of invoice by ChurnZero with respect thereto, where applicable. All payments under this Agreement are to be in U.S. dollars.
8.2 Dispute Charges. Any payment dispute shall be notified in writing to the other Party within thirty (30) days of any such payment. Payments shall be calculated based on records maintained by ChurnZero.
8.3 Taxes. All amounts payable hereunder shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on ChurnZero’s income), if any, fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder.
9. TERM AND TERMINATION.
9.1 Term. The term of this Agreement will commence on the Effective Date and will continue for a period of one (1) year (the “Initial Term”), unless earlier terminated in accordance with this Section 9, and will automatically renew for successive one (1)-year terms, unless earlier terminated or non-renewed in accordance with this Section 9 (the initial term, together with any renewal terms, collectively, the “Term”).
9.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
9.3 Non-Renewal. Either Party may, at its option, elect not to renew this Agreement. Such non-renewal may be effected only through a notice to the other Party at least 45 days in advance of the end of the then-current term. Notices of nonrenewal by Customer must be sent to email@example.com. Notices of nonrenewal by Churnzero will either be provided through the ChurnZero services or to Customer’s email address in ChurnZero’s records.
9.4 Right to Suspend Account. ChurnZero reserves the right, in its reasonable sole discretion, to immediately suspend the ChurnZero Services, any portion thereof, and/or Customer’s access thereto, at any time, (a) if Customer uses the ChurnZero Services and/or ChurnZero Technology in any manner that produces, or is reasonably likely to produce, a detrimental impact on other users or the operational performance of the ChurnZero Service or ChurnZero Technology; or (b) to protect against the commission of suspected illegal activities (a “Suspension Event”). ChurnZero will attempt to contact Customer in advance of any such suspension, and, if possible, work with the Customer to avert such action, but otherwise shall notify the Customer of a suspension under this Section as soon as possible.
9.5 Rights and Obligations upon Termination. Upon expiration or termination of this Agreement, all rights granted hereunder to Customer shall cease, and each Party shall promptly (a) return all Confidential Information to the other Party or purge, destroy or delete all copies of any Confidential Information, and (b) promptly remove the Embed Codes for all Customer Offering(s) as quickly as reasonably practical. In addition, upon termination of this Agreement for any reason or upon expiration, all licenses granted by each Party to the other Party hereunder, shall immediately terminate. If this Agreement is terminated, any outstanding amounts due to ChurnZero by Customer hereunder shall immediately become due.
9.6 Survival. The provisions of Sections 5, 6, 7.4, 8, 9.5, 9.6, 10 (for two years) and 11 shall survive any termination or expiration of this Agreement.
10.1 ChurnZero agrees to indemnify, hold harmless and defend Customer, its officers, directors, employees and agents from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the ChurnZero Technology infringes any U.S. patent, trademark, copyright or other U.S. intellectual property right, provided that Customer promptly notifies ChurnZero in writing of the claim, cooperates with ChurnZero, and allows ChurnZero sole authority to control the defense and settlement of such claim in the event ChurnZero elects to defend such third party claim. If such a claim is made or appears possible, Customer agrees to permit ChurnZero, at ChurnZero’s discretion, to procure the right for Customer to continue to use the ChurnZero Technology, or to modify or replace the applicable ChurnZero Technology to make it non-infringing. If ChurnZero determines that none of these alternatives is reasonably available, ChurnZero may terminate this Agreement. This Section 10.1 shall not apply if the alleged infringement arises, in whole or in part, from: (i) combination, operation or use of the ChurnZero Technology with the Customer Offering(s); or (ii) the Customer Offering (either of the foregoing circumstances, a “Customer Indemnity Responsibility”).
10.2 Customer agrees to indemnify, hold harmless and defend ChurnZero, its officers, directors, employees and agents from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party arising from (i) a Customer Indemnity Responsibility; or (ii) Customer’s noncompliance with Section 7.2, above, provided that ChurnZero promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim.
11. GENERAL. Capitalized terms used in this Agreement that are not defined herein shall have the meanings identified on the Cover Page and any Schedules or addenda to these Terms and Conditions. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement. This Agreement may be modified at any time by ChurnZero to address changes in law, rule, or regulations, which updated version will be made available via the ChurnZero Service. All other changes to this Agreement must be contained in a writing signed by both Parties. No failure or delay by either Party in enforcing this Agreement shall be construed as a waiver, nor shall any waiver be effective, unless expressly set forth in a writing executed by such Party, and such written waiver will not excuse the performance of any acts other than those specifically referred to therein. This Agreement may be assigned by Customer in whole without consent pursuant to a merger or sale of all or substantially all of its assets or capital stock. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby, and the Parties shall substitute for the affected portion an enforceable provision which closest approximates the intent and the economic effect thereof. All notices related to this Agreement, including notices of default, breach or termination, shall be in writing and delivered by reliable overnight delivery service or first-class, pre-paid mail, return receipt requested, to the address specified on the cover page to which these Terms and Conditions are attached. The Parties intend and hereby so state that the validity of this Agreement and any part of its terms or provisions, as well as the rights and duties of the Parties hereunder, shall be governed by the substantive law of the State of Maryland, without regard to its conflict of laws provisions. In addition, ChurnZero and Customer agree that sole jurisdiction to enforce or construe this Agreement shall lie in the State of Maryland. In making and performing this Agreement, ChurnZero and Customer act and shall act at all times as independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership or employer-employee relationship between them. This Agreement, including the Cover Page, these Terms and Conditions, Schedules and addenda (as applicable), constitutes the entire agreement between Customer and ChurnZero regarding the subject matter set forth herein, and this Agreement supersedes all prior proposals, representations agreements and undertakings relating to such subject matter.
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