6750 Alexander Bell Dr, Suite 420
Columbia, MD 21045
Master Subscription Agreement
Terms & Conditions
Revised: April 2019
These terms and conditions (as may be amended from time to time, the “Terms & Conditions”) shall apply to all Services pursuant an order form (“Order Form”) executed between Zentail, Inc., a Delaware corporation (“Zentail”), and the client party to such Order Form (“Client”). The Terms & Conditions, together with such Order Form and any other addenda identified in the Order Form, shall constitute a single legally binding agreement (the “Agreement”) entered into as of the date set forth on the Order Form. Additional definitions for capitalized terms are set forth in Section 14.
- License; Client Data.
a. License. Zentail hereby grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Zentail software and website portal (the “Software”) and the Documentation during the Term solely in accordance with the terms and conditions of this Agreement. During the Term, and subject to the Terms & Conditions, Zentail and its service providers will provide access to the Software on a software-as-a-service basis (the “Services”).
b. License by Client to Host Client Data. As between the Parties, Client is the owner of all Client Data and Zentail will maintain the confidentiality of such Client Data in accordance with Section 8. Client grants Zentail and Zentail’s Affiliates a non-exclusive license to host, copy, use, transmit and display Client Data, and to use Client systems, in each case as necessary for Zentail to provide the Services in accordance with this Agreement, including Third Party Services in accordance with Section 6 and as anonymized or aggregated data in accordance with Section 3.e.
c. IP Ownership. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Software or Services. Zentail acknowledges and agrees that (a) as between Client and Zentail, Client owns all right, title and interest in and to the Client products, sites (including without limitation the look and feel), Client’s Marks, and the technology underlying the Client products and sites, and (b) nothing in this Agreement will confer in Zentail or any Affiliate of Zentail any right of ownership in the foregoing. Client acknowledges and agrees that (x) as between Client and Zentail, Zentail owns all right, title and interest, including all intellectual property rights, in and/or related to the Software, API and Services, and the Documentation and all of the content that is made available in connection with the Software, API and Services, including but not limited to visual interfaces, interactive features, graphics, design, databases, the data contained therein (other than Client Data), computer code, products, SMART Types and all other elements and components of the Software and Services and (y) nothing in this Agreement will confer in Client or any Affiliate of Client any right of ownership in the foregoing. Except as specifically authorized by Zentail in writing, Client shall not alter, change or remove from the Software or Services any trademark, other proprietary mark or proprietary rights notice. Except as expressly provided herein, Zentail does not grant Client any express or implied rights, and all rights in and to the Software and Services are retained by Zentail.
a. Service Fee. Client agrees to pay all fees set forth in the applicable Order Form (the “Fees”). Zentail may revise the fee schedule for the Services at any time, provided it will give thirty (30) days’ advance notice before any change is applicable to Client. Zentail shall have no obligation to deliver the Software or make the Services available until the Fees are received. Client is responsible for paying all taxes associated with the Services, including sales, use, value added and excise taxes but excluding taxes assessed on the income or gross receipts of Zentail.
b. Billing Cycle. Client’s billing cycle initiates the day the Account is provisioned. For the first billing cycle, Zentail will bill Client on the 1st day of the following month (the “Billing Date”) on a prorated basis for the number of days from the Account provision date to the end of the first month. Thereafter, Client will be billed on the Billing Date according to the order volume from the preceding month (the “Monthly Fee”).
c. Failure to Make Payment. Client agrees that failure to pay the Monthly Fee within thirty (30) days after the Billing Date will result in the suspension of Client’s Account. If Client fails to pay any amount due under this Agreement, Zentail may initiate a collection action and Client agrees to reimburse Zentail for its reasonable costs of collection.
- Access to the Services.
a. Compliance with Laws. Client must use the Services in a lawful manner, and must obey all Laws applicable to use of the Services. Such Laws may include compliance with domestic and international Laws related to the use or provision of intellectual property, notification and consumer protection, unfair competition, privacy, and false advertising.
b. Personal Information. Client consents to the processing of personal information by Zentail and its agents to facilitate provision of the Services. Client affirms that it is, and will continue to be, compliant with all applicable Laws governing the privacy, protection, and use of Client Data provided to Zentail or accessed through Client’s use of the Software and the Services. Client has obtained all necessary rights and consents under applicable Law to disclose to Zentail, or allow Zentail to collect, use, retain and disclose any Client Data provided to Zentail or that Client authorizes Zentail to collect, including information that Zentail may collect directly from Client customers or users via cookies or other means, and that Zentail will not be in breach of any such Laws by collecting, receiving, using and disclosing such information in connection with the Services. If Client receives information about others, including Client’s customers, through the use of the Services, Client must keep such information confidential, maintain a security program designed to protect such information against unauthorized access or disclosure and only use it in connection with the Services and in accordance with this Agreement. As may be required by Law and in connection with this Agreement, Client is solely responsible for disclosing to its customers that Client uses the Services and may receive personal data from Client.
c. Prohibited Uses. Except as expressly authorized by Zentail, Client may not, and shall not permit any of its customers or Representatives to, in any manner, directly or indirectly: (i) modify, alter, create derivative works or adaptations of, publicly display or in any way exploit any of the Software, in whole or in part; (ii) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software or the Services in any way; (iii) reverse engineer or disassemble the Software; (iv) remove, disable, or otherwise create or implement any workaround to, any security features contained in the Software or the Services; (v) copy, reproduce or distribute the Software or the Documentation; (vi) directly or indirectly exceed any limitations on usage of the Software, or otherwise use the Software in any manner that could damage, disable, overburden, place an unreasonable load on, interfere with the proper working order of, or impair, the Software, its computer systems or networks; or (vii) use the Software or Documentation in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software, or (c) copy any ideas, features, functions or graphics of the Software.
d. Security Measures; Suspension. The Software and API may contain technological measures designed to prevent unauthorized or illegal use of the Services. Zentail may use these measures to maintain the security and reliability of the Services, verify Client’s compliance with the terms of this Agreement and enforce Zentail’s rights, including all intellectual property rights, in and to the Software. Zentail may restrict or suspend Client’s access to the Software as necessary to protect the Software against misuse, to enforce compliance with Sections 2.b and 7.d and to ensure the reliability and security of the Services.
f. License to Use Feedback. Client grants to Zentail and Zentail’s Affiliates a worldwide, perpetual, irrevocable, royalty-free, assignable, sublicensable, transferable license to use and incorporate into the Software and/or Services any suggestion, correction or other feedback provided by Client relating to the Services or the Software.
- Zentail Obligations.
a. Provision of Purchased Services. Zentail will (a) make the Software and Services available to Client pursuant to the Terms & Conditions and the applicable Order Form and (b) use commercially reasonable efforts to provide the Services in accordance with this Agreement.
b. Protection of Data. The security of Client Data is important to Zentail. Zentail uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of Client Data, once Zentail receives it. No method of electronic transmission of storage is 100% secure and Zentail cannot ensure or warrant the absolute security of any information Client transmits or stores in the Software.
- Client Obligations.
Client will (a) be responsible for compliance by it and its Representatives with this Agreement and the Documentation, (b) be responsible for the accuracy, quality and legality of Client Data, the means by which Client acquired Client Data and Client’s use of Client Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Software or the Services, and notify Zentail promptly (and in any event within 48 hours) of any such unauthorized access or use, (d) use the Software and the Services only in accordance with this Agreement, the Documentation and applicable Laws, and (e) comply with the terms of service, documentation, policies and any other terms applicable to any Third Party Services utilized by Client.
- Third Party Service Providers.
a. Use of Third Party Products and Services. Client acknowledges that the Software may interact with third party services (such as ecommerce shopping sites, inventory management, customer relationship management, enterprise resource planning and accounting software providers or third party logistics companies) (collectively, “Third Party Services”). Any use or integration by Client of such Third Party Services, and any exchange of data between Client and any Third Party Service provider, is solely between Client and the applicable Third Party Service provider. Zentail does not warrant or support, and shall have no liability for, any Third Party Services. Client acknowledges that it will only use Third Party Services in accordance with the Documentation.
b. Third Party Services and Client Data. If Client installs or enables a Third Party Service for use with the Software or the Services, Client grants Zentail permission to allow the provider of that Third Party Service to access Client Data as required for the integration and interoperation of that Third Party Service with the Services. Zentail is not responsible for any disclosure, modification or deletion of Client Data by a Third Party Service.
c. Integration with Third Party Services. The Software may contain features designed to interoperate with a Third Party Service. To use such features, Client may be required to obtain access to a Third Party Service directly, and may be required to grant Zentail access to Client account(s) on the Third Party Service. Zentail cannot guarantee the continued availability of such Third Party Service features, and may cease providing them without entitling Client to any refund, credit, or other compensation.
d. Third Party Service Data. Upon granting access to a Client account on a Third Party Service, the Software may interact with data that may exist on or subsequently be added to such Third Party Service. Zentail is not responsible for any disclosure, modification or deletion of data on a Third Party Service by the Software or the Services. Client acknowledges and agrees that it is responsible for any security incident on Client’s systems that results in the disclosure of such data. Client agrees to promptly (and in any event with 48 hours) delete any and/or all such data (in accordance with industry-standard sanitization processes, e.g., NIST 800-88) that it has received from a Third Party Service upon request by a user or from Zentail and provide certification of such deletion to Zentail as it may reasonably request, including a signed writing from an officer of Client.
- API. This section governs the use of Zentail's application programming interfaces (APIs), and the accompanying Documentation, code and related materials that provide Client with the ability to programmatically interface with the Software, as well as other functionality as Zentail may make available from time to time.
a. API License. Subject to the terms and conditions of this Agreement, Zentail grants to Client a limited, non-exclusive, non-transferable, license to: (i) internally use the API Key to access the API and (ii) internally use, perform, display, reproduce the API solely as necessary to develop, maintain and support Client’s internal business purposes, in accordance with the specifications included in the Documentation.
b. API Restrictions. Client acknowledges that its access to and use of the API is subject to the terms of this Agreement. In addition, Client acknowledges that the API and its structure, organization, and source code constitute valuable trade secrets of Zentail. Accordingly, except as provided in the Agreement, Client agrees not to disclose, distribute, sublicense, lease, rent, loan, resell or otherwise transfer the data received from the Software or the API, the Software or the API or the API Key to any third party. Client will immediately notify Zentail if Client becomes aware of any material breach relating to the API. Client will not make an excessive number of calls to the API, or otherwise use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of this Agreement.
c. Zentail Obligations. Zentail reserves the right to limit and/or interrupt access to the API by a Client in order to carry out scheduled maintenance or unscheduled work or to modify or update the API. Zentail will use commercially reasonable efforts to provide a minimum of 24 hours prior written notice of scheduled maintenance, modification or updates to the API. Zentail may update, upgrade, enhance or modify the API at its discretion at any time, provided it makes a commercially reasonable effort to give Client advance notice. Client acknowledges that any such updates, upgrades, enhancements or modifications may adversely impact how Client accesses, uses, or communicates with the API. Client’s continued access or use of the API will be deemed to be agreement to the updates and modifications.
d. Suspension. Notwithstanding anything else herein, Zentail may revoke Client’s API Key and limit Client’s access to the API if, in Zentail’s sole discretion, it is necessary for Zentail to maintain the quality of the Services.
- Mutual Non-Disclosure.
a. Each party will maintain the confidentiality of the other party’s Confidential Information and will not use, disclose or have Confidential Information disclosed, directly or indirectly to any third party other than its Affiliates, except as required to provide the Services, as contemplated in this Agreement or subject to the other party’s prior permission.
b. Each Party will take precautions to maintain the confidentiality of the other Party’s Confidential Information with the same degree of care as its own Confidential Information, but in no case less than reasonable care. Each party will limit access to the other Party’s Confidential Information to those of its and its Affiliates’ Representatives, including Third Party Service providers, who need that access for purposes consistent with this Agreement.
c. “Confidential Information” means any information identified as “confidential” or “proprietary,” either by legend on written or electronically stored material, or which ought reasonably to be recognized as confidential or proprietary by virtue of its nature or the circumstances of its disclosure. Notwithstanding any failure to so identify it, the following types of information of either party shall automatically be deemed to be confidential information requiring protection hereunder: unreleased product or service information; pricing, financial or Client Data; marketing plans or business strategies; software and hardware; APIs; specifications or designs, proprietary formulae and proprietary algorithms. Confidential Information shall not include: (a) information already known to the other Party without an obligation of confidentiality or is generally known in the industry at the time of disclosure, (b) information that is independently developed by the other Party without use of the Confidential Information; (c) information that becomes available to the other Party from another source, provided that such other source is not bound by a confidentiality agreement with respect to such information on subsequent disclosure or use; or (d) information that is or becomes publicly known other than through a breach by the other Party. Notwithstanding the foregoing, in the event either Party or its representatives are requested or required by legal process or applicable Laws to disclose any of the Confidential Information, such requested Party shall, to the extent permitted by applicable Laws, give prompt notice to the other Party so that it may seek a protective order or other appropriate relief.
- Term; Termination.
a. Term. This Agreement will be effective commencing on the Effective Date set forth in the applicable Order Form and, unless terminated in accordance with the terms herein, will be effective for the term identified in the Order Form (“Term”). At the end of such Term, this Agreement will automatically renew for consecutive terms equal in time to the original Term (each, a new “Term”) on the same terms and conditions unless either Party notifies the other Party of non-renewal in writing at least thirty (30) days prior to the end of the applicable Term.
b. Termination for Material Breach. Either Party may terminate this Agreement if the other Party is in breach of this Agreement and fails to cure such breach within ten (10) days after written notice of such breach is delivered to the breaching Party. Notwithstanding anything else contained herein, this provision will not be interpreted to limit Zentail’s ability to suspend Client’s access to the Services in accordance with Section 3.d.
- Representations and Warranties.
a. Each Party to this Agreement represents and warrants to the other party that: (a) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (c) in connection with this Agreement and its activities hereunder, it will comply with all applicable Laws, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over such Party.
b. Zentail further represents and warrants that: (i) subject to Section 13.a, Zentail will perform all Services in a workmanlike manner consistent with industry standards; (ii) the Software, the API and the Services will not violate applicable U.S. laws, rules or regulations; and (iii) it has taken commercially reasonable measures to ensure that all materials provided to Client by Zentail will, at the time of delivery to Client, be free of any computer “virus” or other similar harmful, malicious, or hidden program, code, or data.
a. Zentail will at all times indemnify and hold harmless Client, and its respective parents, subsidiaries, and Affiliates and the officers, directors, and employees of the foregoing from and against any and all third-party claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees (collectively, a “Claim”), arising out of: (i) Zentail’s gross negligence or willful misconduct; or (ii) any claim that the Software or Services as delivered by Zentail infringe a third-party intellectual property right (“Infringement”). If Client becomes aware of any matter it believes is indemnifiable hereunder involving any Claim against it by any third party, Client shall give Zentail prompt written notice of such matter. Zentail shall have the right to control the defense of any action subject to this indemnification, except that Zentail shall not enter into any settlement that materially affects Client’s rights or interests without Client’s prior written approval, and Client shall have the right to participate in such defense at its own cost with counsel of its own choosing. Notwithstanding the foregoing, Zentail shall not be required to indemnify Client from any such Claim to the extent it arises out of (1) Client’s violation of this Agreement, (2) revisions to the Software or API made without Zentail’s consent, (3) Zentail’s modification of the Software or API in compliance with specifications provided by Client, or in compliance with a method or process provided by Client for implementing such specifications, (4) Client’s failure to incorporate software updates or upgrades that would have avoided the alleged infringement, provided Zentail offered such updates or upgrades without fees or charges not otherwise required pursuant to this Agreement, (5) Client’s use of the Software in violation of the Documentation or (6) Client’s violation of the documentation or terms and conditions applicable to any Third Party Services. If Zentail receives information about an Infringement related to the Software (including any notice from Client), Zentail may in its sole discretion and at no cost to Client (x) modify the Software so that it no longer infringes or misappropriates; (y) obtain a license for Client’s continued use of the Software in accordance with this Agreement; or (z) terminate Client’s subscriptions for the Software and refund to Client any prepaid Fees for the remainder of the term of the terminated license, any of which actions shall constitute satisfaction in full of Zentail’s obligations under this Section 11.a with respect to such Claim for Infringement.
b. Client will at all times indemnify and hold harmless Zentail, and its respective parents, subsidiaries, and Affiliates and the officers, directors, and employees of the foregoing, from and against any and all Claims arising out of: (i) Client’s gross negligence or willful misconduct, (ii) any Client Data or use of Client Data with the Services, (iii) a breach of Client’s representations, warranties and/or obligations herein, (iv) Client’s use of the Third Party Services or (v) claims brought by Client’s customers or users. Notwithstanding the foregoing, Client shall not be required to indemnify Zentail from any such Claim to the extent it arises out of Zentail’s gross negligence or willful misconduct. Client shall have the right to control the defense of any action subject to this indemnification, except that Client shall not enter into any settlement that without Zentail’s prior written approval unless it releases Zentail unconditionally from all liability and imposes no non-monetary or other obligation on Zentail. Zentail shall have the right to participate in such defense at its own cost with counsel of its own choosing.
- Limitation of Liability. THE SOFTWARE AND THE SERVICES ARE PROVIDED “AS IS” AND, EXCEPT AS SET FORTH IN SECTION 10, ZENTAIL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ZENTAIL SHALL NOT BE LIABLE FOR LOSS OF, OR DAMAGE TO, DATA AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ZENTAIL’S CUMULATIVE AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CLIENT UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD IMMEDIATELY BEFORE THE DATE THE CLAIM AROSE. IF APPLICABLE LAW DOES NOT PERMIT THE DISCLAIMER OF CERTAIN DAMAGES RELATED TO A PARTICULAR CAUSE OF ACTION, THEN THIS LIMITATION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
a. Force Majeure. Neither party shall be liable to the other in the event of a force majeure, including, but not limited to, strike, equipment failure, change in Law, fire, earthquake or any other cause that is beyond a party’s reasonable control (“Force Majeure”). Client shall have the right, but not the obligation, to terminate this Agreement without any further obligation to Zentail (except for the pro-rata payment for Fees for any Services through such date) in the event of a Force Majeure that lasts for a period of ten (10) consecutive days or fifteen (15) days in aggregate in any one (1) year period.
b. Choice of Law and Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to any conflicts of law principles thereof. The Parties agree that the exclusive venue for any dispute arising hereunder shall be the federal or state courts located in New Castle County, Delaware. The Parties waive any objection to personal jurisdiction, venue or inconvenient forum as well as any right to a jury trial.
c. Independent Contractor. Zentail acknowledges and agrees that Zentail is an independent contractor under the provisions of the Internal Revenue Code and that Zentail’s employees and agents, if any, are not employees or agents of Client for any purpose, and Client is not responsible to Zentail for any federal, state or local withholding or employer taxation obligations, social security benefits or unemployment compensation related to the services performed under this Agreement. This Agreement shall not be interpreted or construed to create an employment relationship, an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
d. Subcontractors. Client acknowledges that Zentail contracts with third parties for the hosting of the Software and provision of certain functionality of the Services.
e. Assignment. Zentail may transfer and assign any of its rights and obligations under this Agreement without consent. Client may not transfer or assign any of its rights and obligations under this Agreement without Zentail’s prior written consent. Any transfer in violation of the terms of this Agreement will be null and void.
f. Publicity. Unless otherwise agreed with Client in writing, Zentail may use Client’s company name and logo (subject to appropriate trademark attribution) on Zentail’s marketing collateral, including Zentail’s website, press releases, presentations and documents. In addition, Zentail may use aggregated or anonymized information collected in accordance with Section 3.e in white papers, market reports and materials and Client acknowledges Zentail’s right to use Client information in such manner.
g. Surviving Obligations. Sections 1.b, 1.c, 2, 3, 11, 12 and 13 shall remain in effect following the termination or expiration of this Agreement.
h. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and electronic signatures shall be considered valid as original signatures.
i. Construction. All headings in these Terms & Conditions are for convenience only.
j. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
k. Entire Agreement. This Agreement, including applicable Order Forms and any exhibits and addenda hereto, constitutes the entire Agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of these Terms & Conditions and any exhibit or addendum, the terms of such exhibit or addendum shall prevail.
l. Amendment. Zentail change or add to the terms of these Terms & Conditions at any time, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on the Zentail website at (https://www.zentail.com/terms), provided Zentail will notify Client at least thirty (30) days in advance of any material changes. Zentail will provide notice of any material changes through a clickthrough box upon logging onto the Services, via email, or through other means. Client’s use of the Services or API after any such changes are published on the Zentail website, constitutes Client’s acceptance of the terms of the modified Terms & Conditions. The date of revision of these Terms & Conditions will be included at the top left of the Terms & Conditions.
a. “Account” means a version of the Software configured for Client.
b. “Affiliate” means, with respect to any Person, at any relevant time, any other Person controlling, controlled by or under common control with such Person.
c. “API” means the publicly available application programming interface for the Software, as well as the related Documentation.“API Key” means the code provided by Zentail that permits Client to access the API.
d. “Client Data” means all data, information, and other content collected by Zentail from Client through the Services or use of the Software that relates to either Client or any customer of Client.
f. “Documentation” means the resources and documentation that Zentail makes available to Client through support section of the Services, API documentation, Client notifications and warnings in the Software and other pages on the Zentail website.
g. “Laws” means all applicable U.S. and non-U.S. laws, rules, and regulations.
h. “Marks” means trade names, trademarks, service marks, logos or other commercial or product designations.
i. “Party” or “Parties” means individually, either Client or Zentail, or, collectively Client and Zentail.
j. “Person” means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or other entity.
k. “Representatives” means employees, consultants, agents, service providers or representatives.