Terms and Conditions
Terms of Service Last Updated: March 31, 2021
1. This ZTEGRITY CLIENT CONTRACT (the "Agreement") constitutes a legally binding agreement between Ztegrity LLC., a Delaware corporation ('Ztegrity") and you ("You" or "Your"). BY CHECKING THE BOX STATING THAT YOU HAVE READ AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PART OF YOUR REGISTRATION WITH ZTEGRITY, YOU AGREE AND CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ANY CHANGES TO THIS AGREEMENT OR ADDITIONAL POLICIES INCORPORATED BY REFERENCE WHICH ZTEGRITY MAY MAKE IN ITS SOLE DISCRETION IN THE FUTURE, FOR AS LONG AS YOU USE THE ZTEGRITY SERVICES.
Subject to the terms and conditions of this Agreement, Ztegrity hereby grants to You a non-exclusive, revocable, right and license, without right to sublicense, to use Ztegrity's proprietary online platform, including without limitation the website located at http://www.Ztegrity.com, any services offered on or through such website, and any servers, computers or networks used to provide such website (the "Ztegrity Services") for the purposes set forth in this Agreement. In the event you transfer your account or ownership of any Product, as defined below, you shall ensure that any purchasers or assignees are bound by the terms of this Agreement.
In addition to any other rights or remedies afforded Ztegrity under or otherwise in connection with this Agreement,
(a) You will be required to register for an account in order to use certain Ztegrity Services. When You provide information during the registration process, You agree to provide only true, accurate, current and complete information and to update it as necessary to maintain its truth and accuracy.
(b) If You register for a Ztegrity account, You agree to accept responsibility for all activities that occur under Your account or password, if any, and You agree You will not sell, transfer or assign Your subscription or any subscriber rights. You are responsible for maintaining the confidentiality of Your password, if any, and for restricting access to Your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Ztegrity Services using Your account information in whole or in part. Ztegrity reserves the right to terminate Your account or otherwise deny You access in its sole discretion without notice and without liability.
3. PROMOTING PRODUCTS.
If you promote, market or otherwise advertise ("Promote" or a "Promotion") any product which is registered for sale via the Ztegrity Services, either by You or by another Ztegrity client (each a "Product"), whether via the Ztegrity Services or via any other online or offline channel or medium, including for the purpose of earning a percentage of the sale price of any Product sold as a result of such Promotion ("Commissions"), You agree, acknowledge, represent and warrant that:
(a) You will abide by Ztegrity's Return and Cancellation Policy and You will establish Your Vendor Return Policy as set forth below.
(b) When You Promote a Product, You will use the applicable Vendor's trademarks, logos, trade names or service marks in accordance with such Vendor's trademark guidelines, which will either be supplied by Ztegrity or set forth in the Vendor Promotional Messaging Guidelines, if applicable. For purposes of this Agreement, "Vendor" is defined as any person or entity that submits one or more Products for sale via the Ztegrity Marketplace.
(c) You will not make any unlicensed or unauthorized use of, or otherwise infringe, violate or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right (collectively "IP Rights") of any entity or individual.
(d) You will not interfere with or manipulate rankings of Ztegrity's Marketplace (as defined below in Section 4(d)), tracking of Commissions, or the normal flow of traffic to, through, or from the Ztegrity Services.
(e) If You Promote Products or Brands in a high risk industry, You must be in compliance with Ztegrity's Additional Terms and Conditions provided to You, which are incorporated into this Agreement by this reference, at all times.
(f) You will not Promote violence, sexually explicit materials, Products from any website, blog, social network, forum or other medium that contain, host or promote illegal content or material, illegal activities, alcohol, tobacco or prescription drugs, discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age.
(g) You will not Promote any Products or services to children under the age of thirteen (13).
(h) You will not defame any person.
(i) You will not include any trademarks or other brand identifiers, or any copyrighted materials, other than as expressly permitted by this Agreement.
(j) You will not incorporate any variation of or misspell any third-party trademarks or other brand identifiers in any domain name, username or other identifier, including on any social networking site.
(k) You will not in any way copy the "look and feel" of any third party website, or otherwise imply that the Promotion is in fact a third party website.
(l) All communications and/or representations made by You in connection with any Promotions and/or in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false or deceptive. Such disclosures and disclaimers must be made in a clear and conspicuous manner, and will otherwise comply with Your country's laws and all U.S. federal and state laws, including U.S. Federal Trade Commission ("FTC") regulations, policies and guidelines governing advertising, disclosure and consumer protection, including the FTC's Endorsement Guidelines.
(m) Ztegrity reserves the right but is not obligated to review Your Promotions. You agree that Ztegrity, in its sole discretion and at any time, may require changes to Product Promotion and delivery pages, customer support or other items related to the content of Your Promotions.
(n) You will provide valid contact information, including but not limited to a working email address and phone number, where Ztegrity can send inquiries and receive a non-automated reply by end of the following business day.
(o) Ztegrity does not independently review, verify, guarantee, or assume any responsibility or liability for, the accuracy, completeness, efficacy, or timeliness of any information provided by Vendors, nor is it responsible for any bonuses, prizes or other incentives offered by Vendors in the "Vendor Spotlight," as described in this Agreement, or otherwise offered by Vendors via the Ztegrity Services. Your use of any information presented by a Vendor is voluntary, and Your reliance is at Your sole risk. You acknowledge and understand that Ztegrity does not verify statements, claims, incentives or Promotions made by Vendors in the Vendor Spotlight or otherwise made by Vendors via the Ztegrity Services.
(p) You will comply with all applicable laws, rules and regulations, and will not interfere with any other user’s business or use of the Ztegrity Services. Ztegrity reserves the right to take any action against you for violating this provision, including account suspension and/or termination, in accordance with Section 5(c) hereof.
4. SELLING PRODUCTS.
If You register any Products for sale via the Ztegrity Services, You agree, acknowledge, represent and warrant that:
(a) All Products You register for sale via the Ztegrity Services must be approved by Ztegrity prior to You being able to sell the Products through the Ztegrity Services. In certain circumstances, Ztegrity may require You to modify your Products prior to being approved or prohibit your Products from being sold via the Ztegrity Services, in Ztegrity's sole discretion. Ztegrity's approval or modification of your Product is not an endorsement of your Product or of any modification, and Ztegrity is not liable for any modification.
(b) All Products You register for sale via the Ztegrity Services, and the offering and sale thereof via the Ztegrity Services, comply with all of Your country's laws, all laws of any country to which your product may be shipped, and all applicable U.S. federal and state laws and regulations.
(c) Your Products do not involve downloading software on the computer of a person or entity purchasing a Product (the "Purchaser") unless a purchase is completed or You provide the Purchaser a clear and conspicuous disclosure describing all of the software being downloaded, its functionality and You obtain express consent prior to any such downloads.
(d) Without further conditions or limitations, You authorize Ztegrity to list any Product You register for sale via the Ztegrity Services in the online, searchable marketplace of Products made available via the Ztegrity Services (the Ztegrity Marketplace"); and make it available for sale to Purchasers and/or for the persons and/or entities that Promote the Products made available via the Ztegrity Marketplace ("Affiliates") at the price designated by Ztegrity ("Retail Price") after taking into consideration Your suggestions regarding such Retail Price, including any applicable sales tax.
(e) You will provide valid email addresses to which Purchasers or Ztegrity can send inquiries and receive a reply by end of the following business day. Purchasers and Ztegrity must also be able to receive a non-automated response within one business day, when necessary.
(f) You will notify Ztegrity of any regulatory or legal complaints, or threats of such complaints, that You receive in connection with or in relation to a Product within two business days of Your receipt of such complaint. You shall assist Ztegrity, at Your sole cost and expense, in taking any necessary or appropriate actions reasonably requested by Ztegrity to respond to and/or resolve such complaints.
(g) Ztegrity will collect and remit state or local transfer taxes for any retail transaction (including but not limited to sales or use tax) where it believes it is legally required to do so. Where Ztegrity does not collect and remit state or local transfer taxes on a transaction, You may have the legal obligation to pay such taxes. Such obligation may arise as a result of Your existing or past physical contacts with a state (including but not limited to Your provision of a "drop ship" delivery of the physical Product to a buyer located in a state). You may wish to consult a tax professional to determine if You will have this type of obligation in any particular state. You agree that if such an obligation arises with respect to any particular state, You will be solely responsible for the timely payment of such tax and any interest or penalties.
(h) If You use the Vendor Spotlight platform or the Ztegrity Services to communicate with Affiliates about Your Products, You agree that all statements or messages communicated by You via the Vendor Spotlight or Ztegrity Services constitute Promotions under this Agreement and are subject to all applicable terms and obligations thereto. Additionally, and without limiting any other restriction contained herein, You will not use the Vendor Spotlight or Ztegrity Services to: (i) make any false or deceptive statement or claim regarding Your Product or sales of Your Product; (ii) offer any Promotions or incentives to Affiliates unless You intend to fulfill such Promotions or incentives; (iii) offer any Promotions or incentives to Affiliates unless You affirmatively state that they are offered only by You and not by Ztegrity; or (iv) suggest in any way, whether express or implied, that Your Product(s) are endorsed, approved or sponsored by Ztegrity in any way. Ztegrity reserves the right to suspend Your ability to use the Vendor Spotlight or Ztegrity Services at any time.
(i) If and to the extent You use third parties to provide Products or Services, You and such third parties must be in compliance with all terms of this Agreement, and You are responsible for all acts and omissions of such third party.
(j) All Vendors must include the required disclaimers and comply with the requirements.
(k) If, in Ztegrity's sole discretion, you abuse the joint venture program, including for the purpose of avoiding the payment of negative balances, Ztegrity may terminate your account, terminate your access to the joint venture program, or take any other corrective measures it deems appropriate.
(l) You will comply with all applicable laws, rules and regulations.
(m) You will establish an appropriate return, replacement and/or cancellation policy for Your Products ("Vendor Return Policy"). Your Vendor Return Policy must fall within the range of "no refunds" to allowing refunds or replacements up to sixty (60) days after the date of purchase (i.e., a 30-day refund policy or a 45-day refund policy would each be acceptable, if appropriate). If You believe that a Vendor Return Policy longer than sixty (60) days after the date of purchase is appropriate for Your Products, Ztegrity will review such a request, and in its sole discretion, may allow an extended Vendor Return Policy. You can only provide such an extended Vendor Return Policy with Ztegrity's written consent.
You will ensure that the Vendor Return Policy is clearly and conspicuously posted for customers to review prior to purchasing Your Products.
Ztegrity reserves the right to alter or override Your Vendor Return Policy if You abuse Ztegrity's flexible Return and Cancellation Policy, if Your Vendor Return Policy is not appropriate for the Product(s), if the returned or charged back sales (defined in the Accounting Policy) are excessive, or for any other reason Ztegrity deems appropriate, in its sole discretion.
5. AVAILABILITY OF SERVICES; SUSPENSION; TERMINATION.
You agree and acknowledge that:
(a) Subject to the terms and conditions of this Agreement and Ztegrity's policies and procedures, Ztegrity shall use commercially reasonable efforts to provide the Ztegrity Services in a manner that will not disrupt Your business. You acknowledge and agree that from time-to-time the Ztegrity Services may be inaccessible or inoperable for reasons including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Ztegrity may undertake from time to time; or (iii) causes beyond the reasonable control of Ztegrity or that are reasonably unforeseeable by Ztegrity, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that Ztegrity is not liable for any periodic interruptions in availability of the Ztegrity Services and further acknowledge that Ztegrity does not guarantee access to the Ztegrity Services on a continuous and uninterrupted basis.
(b) Ztegrity may decline, delist or halt sales or Promotion of any Product from the Ztegrity Marketplace, suspend funds, adjust Commissions based on performance, close an account, and/or suspend or terminate the Ztegrity Services at any time, in its sole discretion, without cause or notice to You or any penalty or liability for doing so.
(c) Ztegrity, in its sole discretion, may suspend or terminate Your account and Your rights to use the Ztegrity Services and Ztegrity may retain any or all funds (including future funds that may accrue) in Your Ztegrity account, if: (i) Ztegrity suspects or has reason to believe and/or if a person otherwise claims that You have violated the law or breached any term of this Agreement; (ii) Your account becomes dormant as defined in our Accounting Policy; (iii) or Your account experiences or is reasonably anticipated to experience a negative balance. Upon such termination, You agree to immediately cease all use of the Ztegrity Services and Ztegrity intellectual property licensed in Section 8(b) of this Agreement. Without limiting the foregoing, Ztegrity shall have the right to immediately terminate Your access and use of the Ztegrity Services, or any portion thereof, and to seize funds in your account, in the event of any conduct which Ztegrity, in its sole discretion, considers to be unacceptable.
(d) Following suspension or termination of an account or retaining of funds pursuant to this Section 5, Ztegrity will review Your account in a manner determined by Ztegrity in its sole discretion. You agree to cooperate with this review if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, You agree that Ztegrity may retain funds in Your Ztegrity account as liquidated damages and/or for the benefit of Ztegrity or third parties affected by the misconduct. You acknowledge and agree that such liquidated damages: (a) are not a penalty, and (b) are reasonable and not disproportionate to such presumed damages to Ztegrity.
(e) Ztegrity may withhold any portion of the funds in Your Ztegrity account if Ztegrity, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness You may have incurred with Ztegrity or any other Person.
6. EMAIL, TEXT MESSAGES AND TELEMARKETING.
(a) If You send, or cause to be sent any emails in connection with the direct or indirect Promotion or sale of any Product and/or Your use of the Ztegrity Services, then You agree, acknowledge, represent and warrant that all such Emails shall be in compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act") and the Children's Online Privacy Protection Act ("COPPA") (Information on these laws can be found at http://www.ftc.gov/spam/ and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
(b) You shall not directly or indirectly exploit documented or undocumented security holes on any client or server machine, or obtain email addresses via automated means or send any email to any address which was obtained via automated means or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy.
(c) You may not, directly or indirectly, send, initiate or procure the sending of any text message, or use or procure the use of any telemarketing activities, to Promote or sell Products, unless You have received prior written approval from Ztegrity. If You receive such approval and You send, or cause to be sent, any text messages or use or procure telemarketing activities in connection with the direct or indirect Promotion or sale of any Product and/or Your use of the Ztegrity Services, then You represent and warrant that all such text messages or calls will be in full-compliance with all applicable federal and state laws and regulations that apply to sending electronic messages and using telemarketing activities, including without limitation regulations issued by the FTC, the Federal Communications Commission ("FCC"), the CAN-SPAM Act, the Telephone Consumer Protection Act ("TCPA") and state laws regarding anti-spam, text messages and Do-Not-Call Registries (Information on these laws can be found at https://www.fcc.gov/sites/default/ files/tcpa-rules.pdf, http://www.fcc.gov/guides/spam-unwanted-text-messages-and-email, and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
7. API REQUIREMENTS.
Your use of Ztegrity's Application Programming Interface ("API") is subject to the API Terms of Service available at https://customersupport.Ztegrity.com
8. ZTEGRITY'S IP RIGHTS.
(a) Except as set forth in Section 8(b) below, You may not use Ztegrity's name, trademarks, service marks or any other IP Right of Ztegrity in any manner whatsoever to suggest association or affiliation with or endorsement by Ztegrity without the express prior written consent of Ztegrity, which Ztegrity may withhold at its sole discretion. Promotional use of images or reproductions of payment checks issued by Ztegrity without the express, written consent of Ztegrity is prohibited.
(b) Subject to the following terms and conditions, during the term of this Agreement Ztegrity grants You a limited, revocable license to use Ztegrity's name: (i) as a watermark, Internet search engine description, keyword, search term or seeding element with any Internet search engines or keyword-triggered advertising programs; (ii) in metatags or hidden text (iii) as a sub domain or second or third level domain name identifier; (iv) to identify Products or (v) in connection with Promotions.
- Ztegrity may revoke the foregoing license and/or provide restrictions upon Your use of Ztegrity's name, including requiring the use of such disclaimers as Ztegrity may provide, in connection with Your use of Ztegrity's name, at anytime and for any reason in Ztegrity's sole discretion.
- Failure to comply with any restrictions imposed by Ztegrity upon Your use of Ztegrity's name or failure by You to immediately cease all use of Ztegrity's name if so instructed by Ztegrity shall constitute (1) a breach of the limited license set forth in this Section 8(b); and (2) a breach of this Agreement. In such case, Ztegrity reserves the right to pursue any and all remedies available to it at law or in equity.
- You may not use or display Ztegrity's name in any manner to disparage Ztegrity or the Ztegrity Services.
(c) Notwithstanding the limited revocable license set forth in Section 8(b) above, as between the parties, Ztegrity shall be and remain the sole owner of all right, title and interest in and to the Ztegrity Services (including, without limitation, all IP Rights therein) and any other IP Rights, materials or other properties owned, licensed or controlled by Ztegrity, and You hereby assign to Ztegrity all right, title and interest You may be deemed to have therein. All rights not specifically granted to You under this Agreement are expressly reserved by Ztegrity.
9. CONFIDENTIALITY & NON-DISCLOSURE OBLIGATIONS.
(a) In connection with this Agreement, Ztegrity may disclose to You and/or You may otherwise receive or have access to sensitive, confidential, and/or proprietary information of Ztegrity (collectively, "Confidential Information"), including, but not limited to (a) the identities of other Vendors or Affiliates of Ztegrity (collectively, "Ztegrity Clients"); (b) physical and data security information; (c) technical data; (d) Ztegrity Marketplace statistics and sales data; and/or (e) know-how or business information relating to business processes, methods, or marketing strategies. Except as required to perform Your obligations under and in accordance with the terms of this Agreement, You shall not (i) disclose the Confidential Information to any Person, or (ii) use the Confidential Information (whether for Your own benefit or the benefit of any other Person), without the express prior written consent of Ztegrity. You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, Ztegrity Clients to subscribe to any other services or promote the sale of any products which compete, either directly or indirectly, with Ztegrity or the Ztegrity Services, including without limitation the functionality offered by the Ztegrity Marketplace. You agree and acknowledge that Ztegrity may be required to provide to governmental agencies or other third parties information in its possession regarding You or the business You conduct with Ztegrity.
10. EXPORT CONTROL.
You acknowledge and agree to comply with all applicable export Laws, including the U.S. Export Administration Act, the Arms Export Control Act, the International Economic Emergency Powers Act, and the Foreign Corrupt Practices Act; and regulations issued pursuant to these and other U.S. Laws. You hereby represent and warrant that any Product Promoted, offered and/or provided by You via the Ztegrity Services is approved for export from the United States without additional authorization or licensing from the U.S. government. Should the export authorization status of Your Products change, You must immediately notify Ztegrity in writing. Information on U.S. export control regulations can be found on the Commerce Department's website at http://www.bis.doc.gov, the State Department's website at http://www.pmddtc.state.gov and the U.S. Treasury Department's website at https://home.treasury.gov/ policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists.
11. REQUIRED PERMITS.
It is your sole responsibility to obtain and maintain all applicable licenses and permits required for the operation of Your business.
12. REPRESENTATIONS AND WARRANTIES.
You represent, acknowledge and warrant that:
(b) You may not: (i) frame, copy or mirror any content forming part of the Ztegrity Services; (ii) reverse engineer the Ztegrity Services or otherwise attempt to derive its source materials; (iii) access the Ztegrity Services for the purpose of (A) building a competitive product or service, or (B) copy any features, functions or graphics of the Ztegrity Services; (iv) interfere with or disrupt the Ztegrity Services or any data contained therein; (v) attempt to gain unauthorized access to the Ztegrity Services, its related systems or networks; or (vi) use the Ztegrity Services for any unlawful purpose or in violation of the rights of any Person.
To the fullest extent permitted by Law, You agree that
(a) In the event a third party makes any demand or complaint, or commences any action or files any claim whatsoever ("Claim") in connection with Your use of the Ztegrity Services, Your Products, Your Promotions or use of the Vendor Spotlight, You shall defend, indemnify and hold harmless Ztegrity, its related parties and affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (the "Ztegrity Parties"), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, reasonable attorneys' fees and costs) ("Losses") incurred by any Ztegrity Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
(b) Upon receiving notice of a Claim for which Ztegrity is entitled to indemnification by You, Ztegrity shall provide You with written notification and the opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle and/or defend the Claim at Your sole expense; provided, however, that (i) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by Ztegrity will require Ztegrity's prior written consent; (ii) the failure to provide timely notice, control, or assistance shall not relieve You of Your indemnification obligations; and (iii) Ztegrity may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at Ztegrity's own expense, unless You fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case You shall pay all expenses related to Ztegrity's use of such counsel.
(c) In the event that Ztegrity incurs costs, attorneys' fees or other expenses responding to any complaint other than a Claim, in connection with or in relation to Your Products or Promotions, including copyright infringement complaints under the DMCA, Ztegrity reserves the right, in its sole discretion, to recover such costs and expenses by deducting a reasonable, commensurate amount from any monies owed to You by Ztegrity up to a maximum of ten thousand dollars ($10,000) per event. In the event that Ztegrity incurs any Losses relating to Your violation of Ztegrity's Email/Text Message/Telemarketing policy, as set forth in Section 6 above, Ztegrity reserves the right, in its sole discretion, first to recover such Losses by deducting a reasonable, commensurate amount from any monies owed to You by Ztegrity up to a maximum of twenty thousand dollars ($20,000) per event. You understand and agree that the remedies set forth above are not exhaustive and that Ztegrity retains all rights to indemnification described herein. You authorize Ztegrity to make, and release Ztegrity from any liability in connection with, any such deductions.
14. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL ANY ZTEGRITY PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY (A) USE OF OR INABILITY TO USE THE ZTEGRITY SERVICES, (B) PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES OF ANY KIND, RESULTING FROM YOUR ACCESS TO AND/OR USE OF THE ZTEGRITY SERVICES, (C) UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE ZTEGRITY SERVICES, AND/OR (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE ZTEGRITY SERVICES, WHETHER OR NOT ZTEGRITY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF ZTEGRITY FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY ZTEGRITY TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE ZTEGRITY SERVICES, AND ANY SERVICES OR INFORMATION OFFERED THROUGH THE ZTEGRITY SERVICES, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF ZTEGRITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
15. DATA PROCESSING.
You agree to comply with all data protection laws and regulations, including the E.U.'s data protection regulation, the General Data Protection Regulation ("GDPR"). You agree not to market to persons subject to GDPR who have not consented to receive marketing communications.
Persons subject to GDPR are entitled to demand that you take certain actions with respect to their data, including, without limitation, that you delete it, correct it, or restrict processing of it. If you receive a data request from a person subject to GDPR, or if Ztegrity receives any such request with respect to data you are processing, you agree to honor the request within 30 days. You agree to implement appropriate systems and processes to comply with this requirement.
If you receive any personal data from Ztegrity or process personal data on Ztegrity's behalf, you will: (1) implement appropriate technical and organizational measures to ensure to ensure the security of the data; (2) only process personal data for purposes approved by Ztegrity; (3) cease processing such data upon request from Ztegrity; (4) transfer such data only for purposes authorized by law, with prior notification to Ztegrity, and only pursuant to an appropriate subprocessing agreement; (5) indemnify Ztegrity for any claim, expense, demand or cost related to your receipt or use of such data; and (6) upon request, provide Ztegrity with information sufficient to demonstrate your compliance with this section, and allow Ztegrity to audit your data practices if necessary in Ztegrity's sole discretion.
16. NO GUARANTEE OF VALIDITY.
Ztegrity does not endorse, approve, or certify any information provided on or through the Ztegrity Services, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the Ztegrity Services may or may not be current as of the date of Your access, and Ztegrity has no duty to update and maintain such information. Additionally, the information provided on or through the Ztegrity Services may be changed periodically without prior notice. All content provided on or through the Ztegrity Services is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness.
17. NO PROFESSIONAL ADVICE.
Ztegrity provides professional information (for example, financial or compliance) for informational purposes only, which should not be construed as legal or accounting advice. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information, fact or opinion provided on or through the Ztegrity Services. You understand that Ztegrity employees, representatives, and/or agents do not provide advice pursuant to the authority of professional certifications or licenses and You will not treat information provided by our employees, representatives, and/or agents as such. You further understand that by receiving information, facts or opinions on or through the Ztegrity Services, You are not entering into a relationship with Ztegrity or its employees, representatives and/or agents that entitles You to client privileges that may be associated with any professional certifications or licenses.
YOU ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR DECISION TO USE THE ZTEGRITY SERVICES. THE ZTEGRITY SERVICES AND ALL RELATED SERVICES ARE OFFERED "AS IS" AND ZTEGRITY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER ZTEGRITY NOR ITS RELATED PARTIES AND AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, FACT OR OPINION PROVIDED ON OR THROUGH THE ZTEGRITY SERVICES.
19. GENERAL TERMS AND CONDITIONS.
(a) Governing Law; Dispute Resolution, Attorneys' Fees. You agree that Idaho law will govern this Agreement and that any action, suit, proceeding, or claim arising out of or related to this Agreement must be brought exclusively in federal or state courts located in Boise, Idaho. You hereby submit to the in personam jurisdiction and venue of such courts and waive any objection based on inconvenient forum. You agree to indemnify Ztegrity for all of its reasonable attorneys' fees and costs incurred as a result of any action, suit, proceeding or claim brought by You or Ztegrity in which Ztegrity is found to be the prevailing party. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS AGREEMENT. You and Ztegrity agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class action or representative action.
(b) English is Governing Language. This Agreement is in English and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by Ztegrity are for informational purposes only and it is Your obligation to obtain independent legal advice at Your own expense to ensure You understand the terms of this Agreement.
(c) Our Relationship. This Agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary or similar relationship between the parties. You are prohibited from making any promise, warranty or representation on behalf of Ztegrity or obligating Ztegrity in any way. You may not represent to any person that You are the agent of Ztegrity, or are authorized to act on its behalf.
(d) Assignment. Ztegrity may freely assign or transfer any or all of the rights and obligations described in this Agreement. You may not assign this Agreement or any of Your rights and duties hereunder without the prior written consent of Ztegrity. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
(e) Severability. If any provision of this Agreement is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible.
(f) Publicity. You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using Ztegrity's name or referencing the Ztegrity Services; or (iii) suggesting or implying any endorsement by Ztegrity of You and/or any Products without the prior written approval of Ztegrity, which Ztegrity may withhold in its sole discretion. You hereby authorize Ztegrity to include your name, business name, and general information about your use of the Ztegrity services in Ztegrity’s marketing and promotional materials.
(g) Entire Agreement; Amendment. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. Ztegrity reserves the right to amend this Agreement at any time. When Ztegrity amends this Agreement, Ztegrity shall make reasonable efforts to provide You with general, not specific, notice of such changes by posting a conspicuous announcement at http://www.Ztegrity.com that such changes or amendments have occurred and identifying which particular provisions have changed. Such announcement shall be maintained for no less than 30 days following the effective date of such amendment. Your continued use of the Ztegrity Services, following the posting of such amendment will signify and be deemed Your assent to and acceptance of the revised Agreement. You agree that You have the burden to review periodically http://www.Ztegrity.com to inform Yourself of any such changes.
(h) Waiver. The waiver or failure by Ztegrity to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of Ztegrity set forth in this Agreement are cumulative and are in addition to any rights or remedies Ztegrity may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
(i) Equitable Actions. You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to Ztegrity which would not be adequately compensated by monetary damages and that Ztegrity may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the state or federal courts of the State of Idaho or any other court of competent jurisdiction anywhere in the world (at Ztegrity's sole discretion), and, You hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
(j) Force Majeure. You nor Ztegrity shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
(k) Notices. Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (i) actual receipt, irrespective of the method of delivery; (ii) the time of transmission from Ztegrity if sent via email, as date stamped by Ztegrity's systems; (iii) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (iv) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
(l) Headings/Interpretation. The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
(m) Survival. Sections 5, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, and 19 shall survive termination of this Agreement.