END USER LICENSE AGREEMENT
IMPORTANT: READ THIS CAREFULLY BEFORE INSTALLING, USING OR ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT.
THIS ZYPE, INC. END USER LICENSE AGREEMENT (THE “EULA”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU, ACTING ON BEHALF OF YOUR BUSINESS ENTITY (“YOU” OR “END USER”), AS THE END USER OF, AND ZYPE, INC. ("ZYPE"), AS THE OWNER OF THE ZYPE SAAS PLATFORM, WHICH INCLUDES THE OBJECT CODE VERSION OF THE SOFTWARE COMPONENTS OF THE PLATFORM, AND MAY INCLUDE ASSOCIATED DIGITAL MEDIA, WEB CONTENT, AND DOCUMENTATION (COLLECTIVELY, THE “PLATFORM”). THE PLATFORM ALSO INCLUDES ANY UPDATES OR UPGRADES TO OR NEW VERSIONS OF THE PLATFORM, IF AND WHEN MADE AVAILABLE TO YOU BY ZYPE.
IF YOU ARE ACCESSING THE PLATFORM ELECTRONICALLY AND YOU AGREE TO THE TERMS OF THIS EULA, SELECT THE “I ACCEPT” OR “YES” BUTTON WHEN PROMPTED. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, DOWNLOAD, ACCESS OR OTHERWISE USE THE PLATFORM AND CLICK THE “I DO NOT ACCEPT” OR “NO” BUTTON. BY INSTALLING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE PLATFORM, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA, REGARDLESS OF WHETHER YOU SELECT THE "I ACCEPT" OR "YES" BUTTON.
Subject to the terms and conditions of this EULA and timely payment of all required fees hereunder, Zype hereby grants to You, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access the Platform and interact with the features and functionality available via the Platform for purposes of managing End User's video content and applications. This right is granted for the sole purpose of enabling you to use and enjoy the benefit of the Platform as provided by Zype, in the manner permitted by this EULA. As of the date You agree to the terms of this EULA (the "Effective Date"), Zype will provide access to the Platform based on the login credentials You select.
- End User Obligations.
a. Login Credentials.
You shall maintain the security and integrity of your account password and not disclose your password to any other person. You are solely responsible for any misappropriation and/or misuse of the password and shall indemnify and hold Zype harmless for any improper use of the password. Upon compromise or loss of the password, You shall immediately notify Zype in writing and provide all necessary assistance to mitigate any potential damages resulting from such loss or compromise.
b. End User Content.
i. Definition. "End User Content” refers to all videos, text, photos, information and other content streamed, stored, shared or otherwise made available or caused to be made available by You on or through the Platform.
ii. Use of Platform. Any time You access or use the Platform, You are required to comply with our conduct guidelines, as set forth below. End User Content that you stream or share through the Platform may be viewed by other persons or entities, including through third party services and websites. You agree that You will not access or use the Platform to stream, share or store any videos, images, or other content, or otherwise act in any manner, that:
1. is intended to perpetrate a hoax or otherwise defraud, mislead or deceive any person or entity;
2. violates, breaches or circumvents any local, state, federal or other law, rule or regulation, including any ruling or order of a court or administrative body;
3. violates, breaches or circumvents the rights of any person or entity, including infringing or misappropriating such party’s patents, copyrights, trademarks, trade secrets, moral rights or other intellectual property rights, or rights of publicity or privacy;
4. is defamatory, obscene, pornographic, vulgar, lewd, offensive or unlawful;
5. promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
6. is inflammatory, abusive, violent or threatening or promotes violence or actions that are threatening to any other person;
7. promotes illegal or harmful activities or substances; or
8. is harmful to children.
iii. Responsibility. Ultimately, all End User Content, whether publicly share or streamed or privately transmitted, is Your sole responsibility. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any End User Content or endorse any opinions expressed in such End User Content. Under no circumstances will Zype be liable in any way for any End User Content, including, but not limited to, any errors or omissions in any End User Content, or any loss or damage of any kind incurred as a result of any End User Content.
c. End User Cooperation.
You agree to cooperate with and assist Zype and/or its representatives in good faith, in any investigations of breaches of this EULA, including by providing us with such information as we may reasonably request.
- End User Restrictions.
Except as expressly authorized herein, End User is prohibited from and shall not cause or permit any:
i. copying or modification of the Platform;
ii. creating derivative works based on all or any portion of the Platform;
iii. removal or modification of any notice of any patent, copyright, trademark or other proprietary rights that appear on or in the Platform;
iv. reverse engineering, decompilation, translation, disassembly or discovery of the source code of all or any portion of the Platform;
v. using the Platform in any manner that infringes the rights, including intellectual property rights, of any third party;
vi. attempting to circumvent the security systems of the Platform;
vii. attempting to gain unauthorized access to services, materials, other accounts, computer systems or networks connected to any Zype server;
viii. attempting to use the Platform for any purposes other than those intended by Zype, as determined by Zype in its sole discretion;
ix. interrupting, destroying or limiting the functionality or disruption of any software, hardware, telecommunications, networks, servers or other related equipment;
x. distribution, disclosure, marketing, leasing, reselling, assigning, loaning, sublicensing, renting, pledging, offering as security or transferring to any third party, including End User’s customers, the Platform, or use of the Platform for any dial-up, third party data or third party network management services, remote access, interactive or other service;
xi. merging of the Platform into another product;
xii. disclosure to any third party of the results of any testing or performance benchmarks of the Platform; or
xiii. use of the Platform, any updates or any upgrades beyond the Term or after termination of this Agreement.
b. Covenant Not to Compete.
In addition to the limitations on use of the Platform as set forth above, End User shall not, either on its own account or for any other person, firm, company, government or entity, directly or indirectly, including, without limitation, through partnerships, alliances, business arrangements or other channels use any information obtained from the Platform to develop, produce, make, market, offer for sale, sell, import or distribute any applications, products, systems or services that compete with the Platform or provide identical or similar functionality to the functionality as provided by the Platform, or disclose any information relating to the foregoing to any third party. Any breach of this Section 3(b) shall result in the automatic termination of the Agreement retroactive to the date that such breach first occurred.
c. Consequences of Non-Compliance.
Your failure to comply with the terms of this EULA may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
- Term and Termination.
This Agreement shall commence as of the Effective Date and shall remain in effect until terminated by End User or Zype.
You may cancel your account at any time. The rights granted to You under this EULA will terminate automatically if You fail to comply with any of its terms. Zype may terminate this EULA for noncompliance, failure by End User to timely pay for the Platform, or for any other reason, at any time. Upon termination of the Agreement, End User shall make no further attempts to use the Platform.
The provisions of Sections 3-12 shall survive any termination or expiration of this Agreement.
Zype retains all title, ownership, interests and intellectual property rights in and to the Platform and deems the Platform to be confidential information. To the extent the Platform contains any materials licensed from third parties, third party suppliers may own such licensed materials. Zype retains all rights not expressly granted to End User in this EULA. End User further acknowledges that End User is acquiring only a limited right to use the Platform and not any title to or ownership of the Platform or any part thereof and that the Platform is proprietary to and copyrighted by Zype. Zype reserves the right to update or change the Platform at any time with or without prior notice to You.
End User acknowledges that the Platform is and contains confidential and proprietary information of Zype and/or its suppliers. End User agrees to hold the Platform in strict confidence and shall not disclose, allow access to or otherwise make available the Platform, or any part thereof, to any other party without the prior written consent of Zype. End User shall use reasonable means, but not less than that used to protect its own confidential and proprietary information, to safeguard access to the Platform. End User shall be responsible for any unauthorized use or disclosure of the Platform under End User's login credentials, and agrees to indemnify Zype for all fees, costs and expenses (including reasonable attorneys’ fees) incurred by Zype as a result of any breach of this Agreement by End User.The confidentiality obligations hereunder shall survive the termination or expiration of this Agreement.
Other than as specifically set forth herein, the Platform is provided “AS IS” and “WITH ALL FAULTS” and without warranty of any kind. End User agrees that the use of the Platform is at End User’s own risk. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZYPE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ZYPE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ZYPE’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY END USER FOR THE RIGHT TO ACCESS AND USE THE PLATFORM DURING THE THREE (3) MONTH PERIOD PRECEDING SUCH CLAIM. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIMITATIONS SET FORTH IN THIS EULA MAY NOT APPLY TO END USER. IN ADDITION, ZYPE, ON ITS OWN BEHALF AND ON BEHALF OF ITS THIRD PARTY SUPPLIERS, RESELLERS AND DISTRIBUTORS DISCLAIM ALL LIABILITY OF ANY KIND.
End User shall indemnify, defend and hold Zype, and its officers, agents, and employees, harmless from and against any and all actual or threatened losses, liabilities, expenses, damages, claims, demands, proceedings and causes of action (including without limitation reasonable attorneys’ fees and expenses) (“Claims”) based on, arising out of, concerning, resulting from or relating to (a) a breach by End User of any of the terms or provisions of this Agreement, or (b) unauthorized use of the Platform by End User or under End User's login credentials. Zype shall provide prompt notification to End User of any such Claims and shall assist End User, at End User’s sole cost and expense, as reasonably requested by End User.
- Injunctive Relief.
End User acknowledges that Zype will be irreparably harmed if End User’s obligations under this Agreement are not specifically enforced and that Zype would not have an adequate remedy at law in the event of an actual or threatened violation by End User of its obligations despite the availability of monetary damages. Therefore, End User agrees that Zype shall be entitled to seek an injunction or any appropriate decree of specific performance for any actual or threatened violations or breaches by End User without the necessity of Zype showing actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting a bond even if otherwise normally required.
a. Independent Contractors.
The relationship between the parties is that of independent contractors, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship.
b. Entire Agreement; Integration.
The terms and conditions of this EULA, the Zype Master Terms and Conditions (or any negotiated version thereof, including any applicable Order Form) (the “Master Agreement”), and the Data Processing Agreement (as amended by Zype from time to time based on governmental regulatory requirement or statutory changes) (the “DPA”) between You and Zype constitute the entire agreement between Zype and You with respect to the subject matter hereof, and supersede all prior or contemporaneous oral or written representations, proposals or agreements concerning the subject matter herein. This Agreement may be modified only by a written agreement executed by an authorized representative of the party against whom the modification is asserted. The terms and conditions herein take precedence over any additional or different terms, from whatever source, including Your purchase order or other correspondence, to which objection is hereby made by Zype. To the extent there are any conflicts between the terms of this Agreement, the terms of any Master Agreement between You and Zype and the terms of the DPA, the order of governance shall be as follows: the terms of the DPA shall govern, followed by the terms of the Master Agreement, and then the terms of EULA.
c. Wavier; Severability.
None of the terms and conditions in this EULA will be deemed waived, amended or modified by Zype unless such waiver, amendment or modification is made in writing and signed by an authorized representative of Zype. No waiver of rights contained in this EULA shall constitute a subsequent waiver of such rights or any other rights hereunder. If any provision of this EULA is held to be invalid or unenforceable by a proper authority having jurisdiction over this EULA, that provision shall be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remainder of this EULA shall continue in full force and effect.
End User may not assign or transfer, by operation of law or otherwise, any of its rights under this EULA (including without limitation its rights with respect to the Platform) to any third party without Zype’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
e. Governing Law.
This EULA is governed by the laws of the State of New York, without reference to its conflict of law principles.The UN Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to this EULA. In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. In the event of a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
You agree that you will not engage in any activities or conduct or post or distribute any End User shall indemnify, defend and hold Zype, and its officers, agents, and employees, harmless from and against any and all actual or threatened losses, liabilities, expenses, damages, claims, demands, proceedings and causes of action (including without limitation reasonable attorneys’ fees and expenses) (“Claims”) based on, arising out of, concerning, resulting from or relating to (a) a breach by End User of any of the terms or provisions of this Agreement, or (b) unauthorized use of the Platform by End User or under End User's login credentials. Zype shall provide prompt notification to End User of any such Claims and shall assist End User, at End User’s sole cost and expense, as reasonably requested by End User.content that is disparaging to Zype or its business, and that you will not use any Zype trademarks or confidential information in any manner directed to creating a negative impression of Zype in the marketplace.
You agree to comply with all U.S. and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. You expressly agree that You shall not export, directly or indirectly, re-export, divert, or transfer the Platform or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls.
By installing, downloading, accessing or otherwise using the Platform, You acknowledge and agree that You have read this EULA and agree to its terms. Furthermore, You agree this EULA, and the Master Agreement if entered into by You and Zype, is the complete and exclusive statement of the agreement between Zype and You respecting the Platform, and it supersedes any proposal or prior agreement - oral or written - and any other communication between Zype and You relating to the subject matter of this EULA. This EULA cannot be modified by any purchase order or other document submitted by You.