By clicking “agree” you accept these Terms and Conditions and agree to be bound by them. Customer acknowledges that they are purchasing NAMED user subscription licenses. Please keep a copy of these Terms and Conditions, as the online version may change, but you will be bound by the version posted on the date you ordered the Zephyr products or services.
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ZEPHYR TEAMS TERMS AND CONDITIONS (VERSION 1.0 EFFECTIVE MAY 14, 2018)
1. Services; Subscription Fee. From time to time during the term of these Terms and Conditions, Zephyr and Customer may execute one or more individual order forms (each, an “Order Form”). Each Order Form shall, at a minimum, describe the Services to be provided to Customer by Zephyr, the subscription fees for such Services, the subscription period during which such Services shall be available to Customer (the “Subscription Period”), and other transaction-specific terms. In consideration for the Services, Customer shall pay to Zephyr the subscription fee(s) set forth in the applicable Order Form, in accordance with the terms and conditions, including, without limitation, the fee schedule, set forth in such Order Form.
2. License. Subject to the terms and conditions of these Terms and Conditions, which may be revised by Zephyr, and during the applicable Subscription Period, Zephyr grants to Customer a revocable, nontransferable, nonsublicenseable, non-exclusive limited right and license to use the Services, including Zephyr’s proprietary software, in object code form only, and the accompanying documentation, solely in accordance with the accompanying documentation and only as authorized by these Terms and Conditions. For purposes of these Terms and Conditions, Services shall include any updates, enhancements, modifications, revisions and additions to Zephyr’s proprietary software made available to Customer by Zephyr pursuant to the terms and conditions of these Terms and Conditions. Notwithstanding the foregoing, Zephyr may, but is not required to, provide any such updates, enhancements modifications, revisions or additions. Customer may add users and teams to these Terms and Conditions by Zephyr Order Form or Purchase Order.
3. Restrictions on Use of Software and Services. Customer shall only use the Services in accordance with the terms and conditions of these Terms and Conditions, as well as the Terms of Use and Privacy Policy posted on Zephyr’s website. The Terms of Use and Privacy Policy are incorporated into these Terms and Conditions by reference. For any software provided in connection with the Services, Customer shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify or distribute such software or any license key (if any) to such software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the software, in whole or in part; (iii) assign, rent, lease or use the software for timesharing or service bureau purposes, or otherwise use the software for any commercial purpose; or (iv) create any derivative works from or sublicense any rights in the software. Customer represents, warrants and covenants that Customer shall not use the software: (a) to infringe the intellectual property or proprietary rights, or rights of publicity or privacy, of any third party; (b) to violate any applicable federal, state or local law, statute, ordinance or regulation; (c) to disseminate, transfer or store information or materials in any form or format (the “Content”) that are harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable or that otherwise violate any law or right of any third party; (d) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or violate the security of any computer network; or (e) to run Maillist, Listserv, “bots”, “robots”, any form of auto-responder, or “spam” or any processes that run or are activated while Customer is not logged in. Customer, not Zephyr, remains solely responsible for all Content that Customer uploads, posts, e-mails, transmits, or otherwise disseminates using, or in connection with, the software. Customer acknowledges that all Content Customer accesses through use of the software is accessed at Customer’s own risk and Customer shall be solely responsible for any damage or liability to any party resulting from such access.
4. Ownership. Zephyr and its licensors shall retain (i) all right, title and interest in and to the Services, including in and to Zephyr’s proprietary software (in object and source code forms), any and all accompanying documentation, copies or portions thereof and related materials, (ii) all right, title and interest in and to the Zephyr service marks, trademarks, trade names or any other designations and associated goodwill, and (iii) all copyrights, patent rights, trade secret rights and all other intellectual property and proprietary rights in the Services. Customer acknowledges that Customer neither owns nor acquires any rights in any of the foregoing not expressly granted by these Terms and Conditions.
5. Warranty Disclaimer. THE SERVICES ARE PROVIDED “AS IS”. ZEPHYR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND ZEPHYR EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NONINFRINGEMENT, DATA ACCURACY OR SYSTEM INTEGRATION. FURTHER, ZEPHYR DOES NOT WARRANT RESULTS OF USE OR THAT THE SERVICES ARE BUG FREE OR ERROR FREE OR THAT ITS USE WILL BE UNINTERRUPTED. NO WARRANTIES ARE MADE ON THE BASIS OF TRADE USAGE, COURSE OF PERFORMANCE, OR COURSE OF DEALING. ALL THE FOREGOING DISCLAIMERS ALSO APPLY IN FULL WITH RESPECT TO ZEPHYR’S LICENSORS, SUPPLIERS, DISTRIBUTORS, CONTRACTORS AND AGENTS.
6. Indemnity. Zephyr and its licensors, distributors, contractors and agents (collectively, the “Indemnified Parties”) shall have no liability whatsoever for any use Customer makes of the Services. Customer shall indemnify and hold harmless the Indemnified Parties from any claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from (a) Customer’s failure to comply with any term of these Terms and Conditions; or (b) use of the Services in combination with other hardware, software or other systems that is not contemplated by the applicable accompanying documentation. To the maximum extent permitted by applicable law, Customer shall hereby release, and waive all claims against Zephyr and its licensors, suppliers, employees and agents (including litigation costs and attorneys’ fees) of every kind and nature, arising out of or in any way connected with the use of Zephyr’s proprietary software. If Customer is a California resident, Customer waives Customer’s rights under California Civil Code § 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Residents of other states and nations waive their rights under analogous laws, statutes or regulations.
7. Limitations of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFATION WITH THE SERVICES IS TO UNINSTALL AND TO STOP USING THE SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL THE INDEMNIFIED PARTIES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS AND LOSS OF PROFITS) OR (II) FOR ANY MATTER BEYOND THE INDEMNIFIED PARTIES’ REASONABLE CONTROL. ZEPHYR’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THESE TERMS AND CONDITIONS SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. ALL THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ZEPHYR KNOWS OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS AND CONDITIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH THE TERMS OF THESE TERMS AND CONDITIONS WOULD BE SUBSTANTIALLY DIFFERENT, AND ACCORDINGLY THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY REGARDLESS OF WHETHER ANY OTHER REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE.
8. Term and Termination
8.1 Term. These Terms and Conditions shall commence on the Effective Date and shall remain in full force and effect until the termination date stated on the Zephyr purchase order agreed by Customer.
8.2 Automatic Charge for Renewal Terms. Each Subscription Period for Services shall automatically renew and extend at the end of such Subscription Period for successive periods equal to the initial period of such Subscription Period, unless automatic renewal is cancelled in the manner described below. For example, if you have a one- (1-) month subscription period, at the end of the first month, the Subscription Period will automatically renew for successive one- (1-) month terms unless terminated as set forth below in Section 8.3. If Zephyr has a valid credit card number or an alternate payment method on file, then Customer’s payment method will be charged and the applicable Subscription Period shall be automatically renewed and extended as described above at the then-current price, which Zephyr may raise at its discretion, for the Services minus applicable discounts or special offers for which Customer is eligible. The renewal term will begin at the expiration of the then-current term. Zephyr shall notify Customer prior to renewal and again upon renewal of Customer’s subscription term. If Customer does not pay applicable subscription fees then the Services will not be supported by Zephyr and any future choice to upgrade will include payment not only for ongoing support, but also payment for support during the prior that Customer was not making such applicable subscription payments.
8.3 Termination.
8.3.1 Termination for Cause. Zephyr may terminate these Terms and Conditions or any Order Form immediately and with fifteen (15) days’ prior notice if Customer fails to comply with any terms of these Terms and Conditions.
8.3.2 Cancelling Auto-Renewal: If Customer does not wish to have the Subscription Period for Services automatically renewed, Customer must inform Zephyr of Customer’s intent not to renew at least thirty (30) days’ prior to the expiration of the then-current Subscription Period by contacting Zephyr at zephyrinvoices@getzephyr.com.
8.4 Effect of Termination. Upon the earlier termination or expiration of these Terms and Conditions or Order Form, as applicable, all licenses granted to Customer hereunder or in connection with such Order Form, as applicable, shall immediately terminate and Customer shall cease using the applicable Services and promptly render unusable such Services or portions thereof installed on its computer systems. All additional Zephyr users and Zephyr services will also be terminated, and all past pricing agreements with Zephyr will terminate.
9. Dispute Resolution
9.1 Negotiation. The parties shall attempt in good faith to resolve any dispute arising out of or relating to these Terms and Conditions or any Order Form promptly by negotiations between party representatives who have authority to settle the controversy. If the parties are unable to resolve such dispute in accordance with this Section 9.1, the parties may result to arbitration pursuant to Section 9.2 below.
9.2 Arbitration. Any dispute or claim arising out of or relating to these Terms and Conditions or any Order Form shall be resolved by final and binding arbitration conducted in accordance with and subject to the Commercial Arbitration Rules of the American Arbitration Association, except as otherwise mutually agreed to between the parties. The expenses of the arbitration shall be borne equally by the parties. Each party shall be responsible for its own travel costs and expenses for its witnesses. The arbitration shall take place in Alameda County, California. Judgment upon the award rendered in any such arbitration may be entered in any court of competent jurisdiction.
10. Miscellaneous
10.1 Entire Agreement. These Terms and Conditions, its Order Forms and Privacy Policy posted on Zephyr’s website constitute the entire agreement between Customer and Zephyr with respect to the subject matter thereof and supersedes and replaces all prior understandings and agreements, whether written or oral, regarding such subject matter.
10.2 Governing Law. These Terms and Conditions shall be construed and governed in accordance with the laws of the State of California, without regard to its, or any other jurisdictions’, conflicts-of-law principles.
10.3 Amendment. No modification, amendment or any other change to these Terms and Conditions shall be effective for any purpose unless specifically set forth in writing signed by both parties.
10.4 Survival. All defined terms and the terms of Section 3, Section 4, Section 5, Section 6, Section 7, Section 8.4 and Section 10 shall survive the termination or expiration of these Terms and Conditions.
10.5 Further Assurances. Each party agrees to do all acts and things to make, execute and deliver such written instruments, as shall from time to time be reasonably required to carry out the terms and provisions of these Terms and Conditions.
10.6 Severability. If any term or provision hereof should be held to be invalid, unenforceable, or illegal, such holding shall not invalidate or render unenforceable any provision hereof, and the remaining provisions shall not be impaired thereby.
10.7 No Assignment. These Terms and Conditions and the licenses hereunder may not be assigned by Customer without the prior written consent of Zephyr. Any purported assignment or delegation in violation of this Section shall be null and void and of no force or effect.
10.8 No Waiver. No waiver of any term, provision or condition of these Terms and Conditions, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
