This Master Agreement ("Agreement") applies to Customer’s order of services pursuant to an
Order Form or submitted via ZINIER’s website located at http://zinier.com
BY SIGNING THE APPLICABLE ORDER FORM, CUSTOMER AGREES TO ABIDE BY THE TERMS AND CONDITIONS SET FORTH IN THIS MASTER AGREEMENT AND ALL ORDER FORMS AND ACKNOWLEDGES THAT THE TERMS OF THE MASTER AGREEMENT MAY BE AMENDED FROM TIME TO TIME ON ZINIER’S WEBSITE.
1. Defined Terms
1.1 "Documentation" means the user guides, training materials and specifications
(in any form) for describing the use and operation of the Software provided by ZINIER.
1.2 "Survey" means a specific project request entered into the Software by Customer or by ZINIER per Customer request that will be performed either by Customer’s employees or by ZINIER Influencer.
1.3 "Survey Deliverables" means the information and content, including photos or responses uploaded by Customer’s employees or ZINIER Influencer to the Software in the course of performing a Survey. For the purposes of clarity, Survey Deliverables do not include the Software or Documentation.
1.4 "ZINIER Influencer" means the mobile-enabled independent contractors who perform Surveys.
1.5 "Order Form" means the document, either physical or electronic, signed by the parties by which Customer orders the Software or Surveys. Each Order Form incorporates the terms of this Agreement.
1.6 "Software" means the software programs delivered on-demand via Software-as-a-Service delivery and identified in an Order Forms a hosted service by ZINIER or its third party provider and any associated user interfaces and related technology that ZINIER makes available pursuant to this Agreement.
1.7 "User" means any individual designated by Customer by an Order Form who is authorized to access and use the Software and has been supplied a user identification and password by Customer (or by ZINIER at Customer’s request).
2.1 Surveys and Survey Deliverables. If the professional services that Customer
wishes to request are for ZINIER Influencer or Customer’s employees to perform Surveys, then Customer
may from time to time submit a Survey via the Software. ZINIER hereby grants Customer an irrevocable,
perpetual, royalty-free, fully-paid up, transferable, sub-licensable right and license to reproduce,
create derivative works of, distribute, publicly perform, publicly display and otherwise use the
Survey Deliverables for Customer’s personal use or internal business purposes.
2.2 Completion of Surveys. Customer may view Survey status and Survey Deliverables in the Software. Each Survey performed by ZINIER Influencer will be deemed accepted upon completion ("Completion") unless Customer provides ZINIER with written notice that Customer has rejected such Survey for the ZINIER Influencer’ failure to conform to the specifications set forth in the applicable Survey (a "Nonconformity") within four (4) business days after Completion of such Survey. Such written notice must include a description of the Nonconformity.
2.3 Survey building. Upon Customer request, ZINIER will help Customer design and structure Survey(s) ("Survey building"). Customer agrees to pay applicable fees for the Survey building.
2.4 ZINIER Influencer. Customer hereby acknowledges that ZINIER Influencer are independent contractors who register to perform Surveys. The Software connects Customer with ZINIER Influencer, however ZINIER does not control nor supervise the ZINIER Influencer, and the ZINIER Influencer are not employees of ZINIER. As such, ZINIER disclaims all liability for any act or omission by any ZINIER Influencer other than a Nonconformity (as defined above).
3. OWNERSHIP OF INTELLECTUAL PROPERTY.
ZINIER retains all right, title and interest in and to the Software, and Documentation and to all intellectual property shared with Customer other than ZINIER Deliverables. Any rights not expressly granted herein shall be retained by ZINIER.
4. LICENSE; USER ADMINISTRATION.
4.1 License. Subject to the terms and conditions of the Agreement, for the period
the Customer has an active account, ZINIER hereby grants to Customer a personal, non-exclusive,
non-sublicensable and non-transferable license for Customer (a) to remotely access and use the
functions and features of the Software and in accordance with the Documentation; and (b) to use and
reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of
4.2 Restrictions. Except as otherwise expressly set forth in this Agreement, Customer agrees that: (i) it will not, and will not permit any User or other party, without the prior written consent of ZINIER, to directly or indirectly (a) transfer, assign, lease, loan, resell, distribute or otherwise grant any rights in the Software, or Documentation, s in any form to any third party, including commercial time-sharing, rental or service bureau use; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software; (c) copy, modify, translate, or create derivative works based on, the Software or Documentation, ; (d) not remove any trademark or copyright notice in the Software or Documentation; (e) disclose or transmit any data contained in the Software to any individual other than a User, except as expressly allowed herein; or (f) permit any third party to access or use the Software or Documentation, other than the Users authorized under this Agreement.
4.3 Administration of User IDs. Customer may permit any Users to access and use the features and functions of the Software as contemplated by this Agreement. Customer is solely responsible for the transmission of data through the Software, and for the administration, authorization and termination of all unique User identifications and passwords to access and use the Software by Customer and its Users. Customer shall provide ZINIER with accurate, complete and updated registration information of its Users. ZINIER shall have the right, in its reasonable discretion, to refuse registration of, or to suspend or cancel a User’s access to the Software. Customer shall be solely responsible for the security of its access to the Software and the security of each User’s identification(s) and password(s). Customer shall ensure that Users comply with the applicable Customer obligations and restrictions under this Agreement. Customer hereby agrees that any action or inaction by Users that, had such action or inaction been undertaken by Customer, would constitute a breach of the Agreement and shall be deemed a material breach by Customer.
5. ZINIER WARRANTIES AND DISCLAIMER.
5.1 Software Warranty. ZINIER warrants that during the term of an applicable Order
Form ("Warranty Period"), the Software will perform substantially in accordance with the Documentation.
Customer’s sole and exclusive remedy for the breach of the warranty set forth in this Section during
the Warranty Period is that ZINIER will, at its sole discretion, either repair or replace the portion
of the Software that do not comply with this warranty, or refund the amount paid by Customer for
the nonconforming portion of the Software.
5.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, AND DOCUMENTATION ARE PROVIDED "AS IS", AND ZINIER DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS OF A PARTICULAR PURPOSE. ZINIER DOES NOT WARRANT THAT ALL ERROR CAN BE CORRECTED, OR THAT THE OPERATION OF THE SOFTWARE SHALL BE UNINTERRUPTED, SECURE OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
6. FEES; PAYMENT TERMS; TAXES.
6.1 Fees. Customer will pay all fees due according to the terms set forth
in an Order Form or on the Website, for services ordered via the Website. In the event Customer
wishes to increase the number of Users beyond the maximum number of Users for which fees have been
paid, Customer shall be required to pay additional fees associated with the increased number of Users,
prorated for the remainder of the term. Except as otherwise provided in an Order Form, all fees for Software
are due and payable to ZINIER in advance. ZINIER shall be entitled to withhold performance and discontinue
service until all amounts due are paid in full.
6.2 Disputed Amounts. In the event that Customer has a good faith dispute with an invoice, then Customer must notify ZINIER in writing and set out the basis of the dispute before the payment due date. In the event that Customer does not submit a dispute with such period, then the invoice will be deemed accepted and shall be due and payable.
6.3 Taxes. All fees charged by ZINIER are exclusive of all taxes, duties and similar fees now in force or enacted in the future.
7. CONFIDENTIAL INFORMATION.
7.1 Confidential Information. "Confidential Information" means any information
that is marked or otherwise designated in writing as confidential at the time of disclosure or
that a reasonable person would consider confidential based on the circumstances of the disclosure
and the content of the disclosure, and which is disclosed by a party to the other party pursuant to
this Agreement; provided that Confidential Information does not include information that: (i) is or
becomes known to the receiving party from a source other than one having an obligation of
confidentiality to the disclosing party; (ii) is or becomes publicly known or otherwise ceases to be
confidential, except through a breach of this Agreement by the receiving party; or (iii) is
independently developed by the receiving party by employees and contractors of the receiving party
who had no access to Confidential Information of the disclosing party. The Software, Documentation,
and all enhancement and improvements thereto and pricing set forth in an Order Form shall be deemed
ZINIER Confidential Information. Except as is necessary to achieve the purpose of this Agreement,
each receiving party agrees not to use or disclose the other party’s Confidential Information. The
receiving party will protect the Confidential Information of the disclosing party from any
unauthorized use, access or disclosure in the same manner that it protects its own confidential
information of a similar nature, but in no event with less than reasonable care. Notwithstanding
anything to the contrary herein, the receiving party may disclose Confidential Information if
required by a governmental agency or applicable law, provided that it gives the disclosing party
reasonable advance written notice sufficient to permit it to contest such disclosure, at the
disclosing party’s expense.
7.2 Analytics. ZINIER may use and disclose aggregate data and information (including analyses thereof), from Customer’s use of the Software and Surveys ("Analytics"), provided that ZINIER shall not use the Analytics in any manner that identifies Customer. ZINIER may also use the Analytics to enhance ZINIER’s business.
8. LIMITATION OF LIABILITY.
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER ZINIER NOR ITS THIRD PARTY PROVIDERS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER UNDER THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, DELAY OR INTERRUPTION OF BUSINESS, OR LOST GOODWILL; (II) FOR ANY COST OF PROCUREMENT OR OF SUBSTITUTE GOODS, SOFTWARE OR SERVICES; (III) FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (IV) FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. ZINIER’S AND ITS THIRD PARTY PROVIDERS’ MAXIMUM AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID TO ZINIER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY OR $1000, WHICHEVER AMOUNT IS LESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. TERM; TERMINATION.
9.1 Term. This Agreement is effective as of the Effective Date and shall remain
in place until terminated by either party in accordance with Section 9.2. Each Order Form may have
its own effective date, term and termination provision. The termination of any Order Form, in whole
or in part, will not affect Customer’s payment obligations under any other Order Form(s) then in effect.
9.2 Termination. Either party may terminate this Agreement at any time upon written notice in the event that the other party breaches a material provision of this Agreement and does not cure such breach within thirty (30) days after the initial written notice setting forth the breach in reasonable detail.
9.3 Effect of Termination. Upon termination of this Agreement, the defined terms and the rights and obligations in the following provisions will survive: Sections 3, 5, 6, 7, 8, 9.3 and 10. Upon termination of this Agreement: (a) neither party will have any further obligations under any Order Form, except as otherwise set forth in this Section; (b) each party will destroy (within thirty (30) days after receipt of the other party’s written request) all Confidential Information of the other party in its possession received under this Agreement and will not make or retain any copies of such Confidential Information except as required to comply with any applicable law or as necessary for accounting purposes; and (c) all amounts owed by Customer under any applicable Order Form(s) shall become immediately due and payable.
10. MISCELLANEOUS PROVISIONS.
10.1 Government Regulations. Customer will not export, re-export, transfer, or
make available, whether directly or indirectly, any regulated item or information to anyone
outside the U.S. in connection with this Agreement without first complying with all export control
laws and regulations which may be imposed by the U.S. Government and any country or organization of
nations within whose jurisdiction Customer operates or does business.
10.2 Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control.
10.3 Governing Law; Venue. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California, excluding its body of law relating to conflicts of law and the United Nations Convention on Contracts for the Sale of Goods.
10.4 Severability; Waiver. In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default by the waiving party.
10.5 Assignment. Customer may not assign, delegate or otherwise transfer its rights or duties under this Agreement without the prior written consent of ZINIER, and any attempted assignment or transfer without such consent will be void.
10.6 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, overnight courier, email or confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the signature page hereto or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
10.7 Relationship of Parties. ZINIER and Customer are independent contractors and this Agreement will not establish any relationship of partnership, employer-employee, joint employer, employment agency, joint venture, franchise or agency between the parties.
10.8 Entire Agreement; Counterparts; Amendment. This Agreement, including any documents expressly incorporated herein by reference, constitutes the complete agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous agreements, written and oral, regarding such subject matter.. The terms of this Agreement shall supersede the terms in any Customer purchase order or other ordering document. Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by ZINIER without need of further notice of objection, and shall be of no effect or in any way binding upon ZINIER. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. This Agreement may be changed only by a written document signed by authorized representatives of both ZINIER and Customer in accordance with this Section.