TERMS AND CONDITIONS

SAAS SERVICES AND SUPPORT

Subject to the terms of this Agreement, Zentasticarts will use commercially reasonable efforts to provide The User the Services in accordance with the Service Level Terms attached hereto as Exhibit B.

Subject to the terms hereof, Zentasticarts will provide The User with reasonable technical support services in accordance with the terms set forth in Exhibit C.

RESTRICTIONS AND RESPONSIBILITIES

The User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Zentasticarts or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

CONFIDENTIALITY AND PROPRIETARY RIGHTS

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

Proprietary Information of Zentasticarts includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of The User includes non-public data provided by The User to Zentasticarts to enable the provision of the Services (“The User Data”).

The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

Zentasticarts shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

[Notwithstanding anything to the contrary, Zentasticarts shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning The User Data and data derived therefrom), and Zentasticarts will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Zentasticarts offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.] No rights or licenses are granted except as expressly set forth herein.

PAYMENT OF FEES

The User will pay Zentasticarts the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”).

If The User’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), The User shall be billed for such usage and The User agrees to pay the additional fees in the manner provided herein.

Zentasticarts reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current renewal term, upon thirty (30) days prior notice to The User (which may be sent by email).

If The User believes that Zentasticarts has billed The User incorrectly, The User must contact Zentasticarts no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Zentasticarts’s customer support department.

Zentasticarts may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Zentasticarts thirty (30) days after the mailing date of the invoice.

Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.

The User shall be responsible for all taxes associated with Services.

TERM AND TERMINATION

Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.

The User will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Zentasticarts will make all The User Data available to The User for electronic retrieval for a period of thirty (30) days, but thereafter Zentasticarts may, but is not obligated to, delete stored user Data.

WARRANTY AND DISCLAIMER

Zentasticarts shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.

Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Zentasticarts or by third-party providers, or because of other causes beyond Zentasticarts’s reasonable control, but Zentasticarts shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

This Agreement is not assignable, transferable or sublicensable by The User except with Zentasticarts’s prior written consent. Zentasticarts may transfer and assign any of its rights and obligations under this Agreement without consent.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and The User does not have any authority of any kind to bind Zentasticarts in any respect whatsoever.

In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

EXHIBIT A

Statement of Work

Bulk provisioning of user accounts
The User training (on site or via webinar)
Providing documentation
Custom development work (one-time)
etc.

EXHIBIT B

Service Level Terms

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If The User requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.

Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Zentasticarts’s control will also be excluded from any such calculation. The User‘s sole and exclusive remedy, and Zentasticarts‘s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than [one hour], Zentasticarts will credit The User 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.

Downtime shall begin to accrue as soon as The User (with notice to Zentasticarts) recognizes that downtime is taking place, and continues until the availability of the Services is restored.

In order to receive downtime credit, The User must notify Zentasticarts in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.

Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.

Zentasticarts will only apply a credit to the month in which the incident occurred. Zentasticarts’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Zentasticarts to provide adequate service levels under this Agreement.

EXHIBIT C

Support Terms

Zentasticarts will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.