Posted/Revised: December 20, 2019
These Terms of Service constitute an agreement (this “Agreement”) by and between KLP Solutions, Inc. d/b/a ZonRanker, a Corporation whose principal place of business is in Pennsylvania (“Vendor”) and the corporation, LLC, partnership, sole proprietorship, or other business entity or individual executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s System (as defined below in Section 1.10) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
- DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
- 1. “AUP” means Vendor’s acceptable use policy is set forth in Addendum A to this Agreement.
- 2. “Base Credits” are Credits, as defined in Section 1.3, that are included as part of each Customer’s Subscription Fee, as defined in Section 4.1. Unused Base Credits may be carried forward from month to month and year to year.
- 3. “Credit” or “Credits” are the currency used by Vendor for the System. In order to use the System to create and conduct product launches or purchase certain products or services, the Customer must use Credits unless otherwise permitted by Vendor. A single Credit is equivalent to one unit of product unless otherwise stated at www.staging-old.zonranker.com. All Credits, excluding Base Credits, do not expire unless the Customer cancels or does not renew an Order or the Order is terminated.
- 4. “Customer Data” means data in electronic form input or collected through the System from Customer, not including End User Data.
- 5. “End User Data” means data in electronic form input or collected through the System from the End Users. End Users do not include Customer.
- 6. “Documentation” means Vendor’s standard manual related to use of the System, as well as training materials or videos posted, hosted, or otherwise accessible at www.staging-old.zonranker.com as well as any data, text, graphics, images, audio and video clips, logos, icons and links posted or accessible at www.staging-old.zonranker.com.
- 7. “End User” or “End Users” means the individuals who claim or attempt to claim promotional offers from the Customer through Customer’s use of the System.
- 8. “Order” means an order for access to the System, as defined below, executed as follows: The Customer must select a subscription plan at www.staging-old.zonranker.com, accept the terms of conditions and of acceptable use and submit the requisite payment for the subscription plan. If the Customer obtains a custom order, the Customer, must accept the terms of conditions and of acceptable use and submit the requisite payment at www.staging-old.zonranker.com.
- 10. “System” means Vendor’s website (www.staging-old.zonranker.com) and website application (“Webapp”) and Facebook chatbot application (“Chatbot”), including automated connections to certain third-party applications and services.
- 11. “SLA” means Vendor’s standard service level agreement, which is as follows:
Vendor will make reasonable efforts to make the System available to the Customer at all times, excluding scheduled maintenance. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with the System availability shall be that for each period of downtime lasting longer than 12 hours in a 24-hour period, customer will receive a pro-rated credit of the Customer’s Subscription Fee, as defined below, for 24 hours for each qualifying interruption, except any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will be excluded from any such calculation. Downtime also does not include any interruption to or failure of the automated process of issuing rebates, as defined in Section 3, that is due to an interruption or error related to the verification of order IDs. Downtime shall begin to accrue as soon as the Customer recognizes that downtime is taking place, provides written notice to the Vendor, and continues until the availability of the System is restored. In order to receive downtime credit, Customer must notify Vendor 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 week of Service Fees in any one calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
- 12. “Term” is defined in Section 11.1 below.
- 13. “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- THE SYSTEM.
- 1. Use of the System. During the Term, Customer may access and use the System pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
- 2. Service Levels. Vendor shall provide the remedies listed in the SLA for any failure of the System listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the System, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Any credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeited upon termination of this Agreement. Vendor is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
- 3. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Customer’s use of the System.
- 4. System Revisions. Vendor may revise System features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Order, the revisions will not go into effect with respect to such Order until the start of the Term beginning 45 or more days after Vendor posts the revision and so informs Customer.
- REBATE PAYMENTS
- 1. Issuance of Rebate Payments. Vendor is responsible for the issuance of rebate payments to End Users. In order to issue the rebate payments to End Users, Customer most deposit the funds for the rebates with Vendor in advance of creating a rebate promotion through the System. Customer must deposit with Vendor funds for the entire promotion in advance of the promotion. Customer will not be able to create an active promotion until the payment for the rebate deposit has fully processed unless Customer already has an available rebate balance to fund all rebates for the desired promotion in Customer’s account. When Customer creates an active promotion, the total amount of all rebates for the promotion will be reserved. Once the product launch ends, any unused funds for the rebates will be available for the Customer to use towards future promotions. If Customer marks an order for a manual rebate or an order is cancelled before the rebate for that order has been issued, the rebate funds reserved for that order will be made available immediately for the Customer to use.
- 2. When Rebates Are Issued. All rebates are issued within 48 hours from the time the End User’s order ships based on the order shipment status provided by Amazon through the API between the System and the Customer’s Amazon Seller Central account as authorized by Customer. The Customer acknowledges that if the Customer revokes Vendor’s access or ability to validate the order status through the API (which includes failing to renew permissions), Customer is solely responsible to make all rebate payments manually.
- 3. Problems with Rebates to End Users. If Vendor issues a rebate to an invalid or improper email address that was erroneously or inadvertently provided to Vendor through the System by the End User or Customer and the End User does not receive the rebate payment, Customer must open a support ticket through the System’s Help Desk to request that Vendor attempt to recall the payment. In addition, Customer is solely responsible to manually issue the End User the rebate. Within 72 business hours of receiving the ticket, Vendor will attempt to recall the payment if it is possible to do so without a fee. If Vendor can successfully recall the funds, those rebate funds will be credited back to Customer’s rebate deposit available balance within 5 business days of receipt by Vendor.
- 4. Withdrawal of Funds. Customer may withdraw rebate funds once every 30 days or upon the termination of the Order. Customer must submit a written request for the return of the rebate funds through the help desk for the System. All requests will be processed within 30 days. Customer is responsible for any transaction fees or costs associated with the return of the funds, which will be deducted from the amount of the funds returned to Customer.
- 5. Outages. In the event of a System outage or anticipated outage that impedes Vendor’s ability to issue rebate payments to End Users for 24 hours or more, Vendor will notify customer of the outage via email to the email on file and through an alert on the Customer’s dashboard in the Customer’s account in the Webapp. Upon receipt of the notice, Customer will be responsible for manually issuing all rebates as of the time period specified in the notice. Customer must mark each rebate payment it issues as manual during the time which Customer is responsible for issuing rebate payments. Vendor will provide Customer with 12 hours’ advance notice of when the Vendor will resume issuing rebates via email to the email on file and through an alert on the Customer’s dashboard in the Customer’s account in the Webapp. If Customer fails to mark any rebate payments Customer manually issued as such, those payments will be issued again by Vendor upon resumption of the Vendor issuing rebates. Customer acknowledges that Vendor is not liable to Customer for any duplicate payments issued as a result of Customer’s failure to mark a payment as manually paid.
- SYSTEM FEES.
- 1. Recurring Subscription Fee. Customer shall pay Vendor the fee set forth in each Order (the “Subscription Fee”) for each Term. Vendor will not be required to refund the Subscription Fee under any circumstances.
- 2. Credits. Apart from any Base Credits included as part of the Subscription Fee, Customer must purchase Credits to use the System. All Credits are non-refundable and are forfeited upon the cancellation or termination of the Customer’s Order.
- 3. When Credits are Redeemed. When a Customer creates a product launch in the System, the amount entered by the Customer in the “total units” field will automatically reserve an equivalent amount of Credits (“Reserved Credits’). Any Credit that is a Reserved Credit is not available to use except for the product launch for which it has been reserved. Credits that are not Reserved Credits and that have not been redeemed are available to use (“Available Credits”). In order to create a new product launch, the Customer must have an amount of Available Credits in his or her account that is greater than or equal to the total units for a given product launch. All Credits that are used for product launches are redeemed when the Amazon order has been shipped or if the Customer elects to manually issue a rebate for an Amazon order, both of which are determined at the sole discretion of Vendor. Credits are otherwise redeemed for other services or products at the time of purchase of those services or products. If a Customer cancels a launch and has Credits that have not been redeemed, those Credits will become available for Customer’s immediate use subject to the terms and conditions governing Credits as set forth herein.
- 4. Disputes Regarding Credits. If you believe Vendor has made an error with respect to the redemption of Credits, you must notify Vendor via email at firstname.lastname@example.org from the email registered to your account within 30 days of the alleged error and include the amount of Credits that you believe were redeemed in error with an explanation of the basis for your claim. Vendor will respond within 10 business days and provide a response via email. If Vendor determines that any Credits were, in fact, redeemed in error, Vendor will issue Customer the amount of Credits that were redeemed in error.
- CUSTOMER DATA & PRIVACY.
- 1. Use of Customer Data. Vendor may access, process, and use Customer’s Data as (a) Vendor deems necessary to optimally facilitate the System; (b) to remarket products and services offered by Vendor and related products or services offered by Vendor or its parent, subsidiaries, agents, affiliates, partners regardless of whether those products are related to the System. Vendor shall not intentionally grant any third-party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement.
- 2. Use of End User Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use End User Data other than as Vendor deems necessary to optimally facilitate the System; (b) shall not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose End User Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
- 4. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
- 5. Data Accuracy. Vendor will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
- 6. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
- 7. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Section 5, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
- CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
- 1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 6.1, including without limitation by Users, Vendor may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third party for violating the AUP, this Section 6.1, or this Agreement, but Vendor is free to take any such action it sees fit.
- 2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
- 3. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
- 4. Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
- IP & FEEDBACK.
- 1. IP Rights to the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
- 2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
- REPRESENTATIONS & WARRANTIES.
- 1. From Vendor. Vendor represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Vendor. In the event of a breach of the warranty in this Section 8.1, Vendor, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
- 2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; and (d) that the Customer has the lawful right to use any information, written materials, images, logos or other content Customer post or uploads to the System.
- 3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISUSE OF THE END USER DATA, INCLUDING ANY PERSONALLY INDENTIFIABLE INFORMATION OR OTHER PRIVATE INFORMATION; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE AND IS NOT LIABILE FOR ANY UNAUTHORIZED ACCESS TO ANY CUSTOMER’S ACCOUNT ON THE SYSTEM.
- INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer’s employees, as well as by End Users; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.).
- LIMITATION OF LIABILITY.
- 1. Dollar Cap. VENDOR’S AGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $1,000.
- 2. Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- 3. Disclaimer for Customer’s Integrated Accounts. The Customer hereby acknowledges and agrees that the Vendor is not liable for any suspension, termination, or loss of use, whether indefinite or permanent, of the Customer’s accounts, including but not limited to any Amazon seller account of any type, PayPal account of any type, and Facebook page or account of any type that are integrated with or connected to the System.
- 4. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 10 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
- Term & Termination.
- 1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order. Thereafter, the Term will renew for successive 30-day or one-year periods, whichever subscription period the Customer chooses, unless the Customer cancels his or her Order at www.zonranker.com/myaccount, which would take effect at the end of the Customer’s last Order that has been paid, or the Vendor refuses renewal, which would take effect after the expiration of the current subscription period based on the Customer’s Order at the time of the Vendor’s refusal. If the Customer cancels his or her Order or if the Vendor refuses renewal, all Credits, including Base Credits, will be forfeited and are not redeemable at a future date even if the Customer places a new Order at a future date.
- 2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. In addition, Vendor may immediately terminate this Agreement upon written notice to the Customer for Customer’s violation of the AUP pertaining to fraudulent, unlawful, or unethical purpose. If Vendor terminates this Agreement for cause, Customer will forfeit any Subscription Fee or Credits, including Base Credits.
- 3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections 7 (IP & Feedback), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
- 1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
- 2. Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed received 72 hours after they are sent.
- 3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
- 4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
- 5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- 6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- 7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Pennsylvania, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Bucks County, Pennsylvania. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
- 9. Construction. This Agreement will not be construed in favor of or against either party by reason of authorship.
- 10. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
- 11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
ZonRanker’s Authorized Use Policy
WE RESERVE THE RIGHT AT ANY TIME TO:
- Change the terms and conditions of the AUP;
- Change the System, including eliminating or discontinuing any content on or feature of the System; or
- Change any fees or charges for use of the System.
Any changes we make will be effective immediately upon notice, which we may provide by means including, without limitation, posting on the System or electronic mail. Your continued use of the System following such changes will be deemed acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of the AUP.
The Documentation provided through the System are intended to educate and inform you about ZonRanker and the System itself. Unless otherwise specified on the System, You may not download the various Documentation accessible through the System.
You must retain all copyright and other proprietary notices on downloaded and copied Documentation, and any such downloads or copies are subject to the terms and conditions of the AUP and Terms of Service. Furthermore, the Documentation remain the property of Vendor or its licensors or suppliers. Your use or downloading of the Documentation is conditioned on Your acceptance of any terms and conditions of any license agreements relating to such Documentation, including agreements of third parties. By acquiring or using the Documentation, you agree to such terms and conditions. You may not download, copy or use any of the Documentation except as expressly authorized and, in any event, you may not distribute, modify, transmit or publicly display the Documentation except as permitted by the AUP, Terms of Service, any License Agreement or, if so indicated expressly in writing by Vendor, its licensors or suppliers.
Some areas of the System may require You to be or become a registered user. When and if You register, You agree to (a) provide accurate, current and complete information about Yourself as prompted by our registration form (including your email address) and (b) maintain and update Your information (including your email address) to keep it accurate, current and complete. You acknowledge that, if any information provided by You (or on your behalf under your direction or knowledge) is untrue, inaccurate, not current or incomplete or contains a misrepresentation, Vendor reserves the right to terminate the Agreement and Your use of the System.
As part of the registration process, You will be asked to select a username and password. We may refuse to grant You a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You will be responsible for the confidentiality and use of Your username and password and agree not to transfer or resell Your use of or access to the Site to any third party. If You have reason to believe that Your account with us is no longer secure, You must promptly change Your password by visiting www.staging-old.zonranker.com and immediately notify us of the problem by emailing firstname.lastname@example.org.
YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
- Code of Conduct
While using the System or Documentation, you agree not to:
- Restrict or inhibit any other visitor, user or member from using the System, including, without limitation, by means of “hacking” or defacing any portion of the System;
- Use the System or Documentation for any unlawful purpose;
- Use the System or Documentation to engage in any act of fraud,
misrepresentation or other unethical behavior;
- Create more than one account while registering on the System without prior written consent from Vendor;
- Express or imply that any statements You make are endorsed by Vendor, without Vendor’s prior written consent;
- Transmit (a) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by Vendor);
- Engage in spamming or flooding;
- Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature;
- Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the System or Documentation;
- Remove any copyright, trademark or other proprietary rights notices contained on the System or Documentation;
- “Frame” or “mirror” any part of the System without our prior written authorization;
- Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the System or its contents; or
- Harvest or collect information about System visitors or members without their express consent.
While using the System or Documentation, You agree to comply with all applicable laws, rules and regulations.
- Submissions and Postings
By sending or transmitting to us creative suggestions, ideas, notes, concepts, information, photographs, videos, or other materials (collectively, “Submissions”), or by posting or uploading such Submissions to any area of the System, You grant us and our designees a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, without compensation to the provider of the Submissions. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on Vendor’s part, and Vendor will not be liable for any use or disclosure of any Submissions. All Submissions are subject to the Terms of Service.
- Claims of Copyright Infringement
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If You believe in good faith that materials hosted by Vendor infringe Your copyright, You (or Your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the System are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow the Vendor to locate the material on the System; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If You believe in good faith that a notice of copyright infringement has been wrongly filed by Vendor against You, the DMCA permits You to send Vendor a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the System should be sent to ZonRanker, 474 Pike Road, Unit B, Huntingdon Valley, PA 19006. We suggest that You consult Your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
- Ownership and Restrictions on Use
The System is owned and operated by Vendor in conjunction with others pursuant to contractual arrangements, and the System and Documentation (and any intellectual property and other rights relating thereto) are and will remain the property of Vendor or its licensors or suppliers. The System and Documentation and the selection, compilation, collection, arrangement and assembly thereof are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. You may not copy, reproduce, republish, upload, post, transmit or distribute Documentation or other content or information available on or through the System in any way without our prior written permission. The Documentation may be used solely to the extent necessary for your authorized use of the System as provided in the AUP or Terms of Service, as expressly authorized in writing by Vendor, or, if so indicated in writing by Vendor, its licensors or suppliers. Modification of the System or Documentation or use of the System or Documentation for any other purpose is a violation of our copyright and other proprietary rights and is strictly prohibited. You acknowledge that You do not acquire any ownership rights by using the System or Documentation or.
The trademarks, logos, and service marks displayed on the System such as ZonRanker™ among others (collectively the “Trademarks”) are the registered or unregistered trade or service marks of Vendor. The Trademarks owned by Vendor, whether registered or unregistered, may not be used in connection with any product or service that is not the Vendor, in any manner that is likely to cause confusion with customers, or in any manner that disparages Vendor. Nothing contained on the System should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Vendor or the third-party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Vendor will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.
- Jurisdictional Issues
Those who choose to access the System do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
We reserve the right to limit the availability of the System or the provision of any service described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such service that we provide.
You agree to pay at the time indicated in each Order and the Terms of Service any Subscription Fee due from you thereunder. If not otherwise indicated in the Order or Terms of Service, all payments are due every 30 days after the initial payment. All payments for Credits are due immediately.
You agree to accept responsibility for paying and reporting (a) all federal, provincial, state and local taxes, however designated, levied or based on account of the purchase price of the products or services or on account of your use of the products (exclusive only of taxes based on net income derived by Service Provider), and (b) all foreign taxes, export or import tariffs, and custom duties, however designated, levied or based in connection with the sale conducted hereby, the purchase price of the products and the services, or your use of the products or services. You agree to indemnify and hold Vendor harmless from all claims and liability arising in connection with Your failure to report or pay such taxes.
In the event that you default in any of the terms and conditions of the Order, including the Terms of Service, including the addenda thereto, or a petition for bankruptcy is filed by or against You, then, to the extent permitted by applicable law, Vendor shall have the right to exercise one or more of the following remedies: (a) To declare the entire amount of the unpaid total purchase price due and payable plus all service fees that would otherwise come due for the remainder of the Term, together with interest thereon at the lesser of 18% per annum or the then highest allowable legal rate per annum; or (b) to terminate Your ability to use or access the System as to any or all Orders. All remedies of Vendor hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or consecutively and jointly or severally, and the exercise of any one remedy shall not be deemed to be an election of such remedy to preclude the exercise of any other remedy. No failure on the part of Vendor to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Vendor of any right or remedy hereunder preclude any other or further exercise of any partially exercised right or remedy.
- Audits & Violations
In the event that Vendor has a reasonable basis to believe that You have used the System to engage in any illegal act, act of fraud, misrepresentation, or other unethical behavior, Vendor may immediately suspend your access to the System and demand in writing to the email address on file that you provide documentation and information related to the conduct or occurrence at issue. You must provide the requested information and materials within 5 business days of Vendor’s written request unless given additional time in writing by Vendor. Otherwise, Vendor will terminate the Agreement for cause pursuant to Section 10.2 of the Agreement. If You submit the requested information and materials, Vendor may make additional request, and You must respond to those additional requests within 5 business days unless given additional time in writing by Vendor. Upon reviewing your submission(s), Vendor may, at its sole discretion, determine whether to reinstate Your access to the System or to terminate the Agreement. Any termination for cause is subjection to Section 11.2 of the Agreement.
In addition to the remedies set forth in the Terms of Service and except as provided above, in the event that You breach any term of the AUP or the Terms or Service, and such breach is not cured within 10 days after receipt of notice thereof from Vendor, Vendor may terminate the Agreement in whole or in part immediately upon written notice to you. Notwithstanding the foregoing, there shall be no cure period for any breach that is not curable or that constitutes fraud, unlawful activity, or unethical behavior.
Vendor reserves the right in its sole discretion to suspend, revoke, terminate a Customer’s access to the System or Documentation should the user violate any term or condition of the AUP or Terms of Service.
Selected General and Specific GDPR Provisions
(data inflow transactions)
Customer and Vendor acknowledge that all definitions, terms, and conditions of the Agreement apply to this Addendum B except as otherwise stated in this Addendum B. Customer acknowledges that as between Customer and Vendor, Customer is the sole data controller and Vendor is serving only as a data processor and not also as a joint data controller (as those terms are defined by the General Data Protection Regulation effective May 25, 2018, hereinafter “GDPR”) with respect to any European Union (EU) personal data (as defined by the GDPR) that is provided to, shared with or otherwise transferred or distributed to Vendor, its employees, subcontractors or agents under this Agreement.
The terms and conditions of this special EU Data Rider Amendment shall survive the termination or expiration of the Agreement.
- Customer’s Representations and Warranties (General)
Customer represents and warrants that with respect to any data received by Vendor from Customer under this Agreement, Customer has:
- a) Obtained all legal right, power and authority under all applicable federal and state laws to collect and provide to, share with or otherwise transfer or distribute to Vendor the data so that Vendor can process the data for the purpose of verifying End Users’ order information, issuing payments to End Users via PayPal, preventing and blocking End Users from attempting to scam any Customer after a violation has by reported by any Customer (“the Purpose”), and that Vendor is not receiving any data under this Agreement that is in violation of any applicable federal or state law or in violation of the legal rights of any third party end-user or consumer;
- Customer’s Representations and Warranties (GDPR Specific)
Customer represents and warrants that with respect to any EU data received by Vendor under this Agreement, Customer has:
- a) Obtained all legal right, power and authority under the GDPR and any applicable EU member country to collect, provide to, share with or otherwise transfer or distribute to Vendor the EU data, that Customer has obtained all legal authority from all applicable EU data subjects to provide to, share with or otherwise transfer or distribute to Vendor the EU data so that Vendor can process said data for the purpose of verifying End Users’ order information, issuing payments to End Users via PayPal, preventing and blocking End Users from attempting to scam any Customer after a violation has by reported by any Customer (“the Purpose”) and that Vendor is not receiving any EU data under this Agreement that is in violation of the GDPR, the laws of any applicable EU member country or in violation of the legal rights of any EU data subject.
- b) Implemented the appropriate technical and organizational measures to be able to demonstrate that the EU data received by Vendor under this Agreement is not in violation of the GDPR, the laws of any applicable EU member country or any legal rights of any EU data subject;
- c) Not provided to, shared with or otherwise transferred or distributed to Vendor any EU data from EU data subjects that at the time of data collection were under the age of 13 and that the appropriate legal parental or legal guardian consent was obtained from all EU data subjects ages 13 to under the age of 16;
- d) Provided Vendor with prompt notice of any EU data subject’s request to cease, suspend or restrict processing the data of the EU data subject, to correct, transfer to another, or retrieve his/her EU data and/or to have completely erased, deleted, destroyed and removed from storage the EU data of the requesting EU data subject;
- e) Maintained and preserved written and electronic books and records demonstrating Customer’s compliance with this section 5, making such books and records available to Vendor and any enforcement agency, upon request, and generally cooperating and sharing with Vendor any additional information in order to demonstrate compliance with this section 5, the GDPR and/or data privacy laws of an applicable EU member country;
- f) Implemented appropriate technical and organizational measures to ensure a level of security that is appropriate for Vendor’s use, handling, processing and storage of the EU data, including as appropriate:
(i) anonymizing or pseudo-anonymizing the EU data;
(ii) encrypting the EU data;
(iii) restoring the availability and access to the EU data in the event of a data breach; and
(iv) implementing a process for regularly testing, assessing and evaluating the effectiveness of deployed technical and organizational measures for ensuring the security of the EU data;
- g) Implemented appropriate technical measures to ensure that if any anonymized EU data or pseudo-anonymized EU data has been provided to Vendor, that Customer has informed Vendor which data set(s) are classified as anonymized and/or which are classified as pseudo-anonymized and that the data classifications as presented by Customer meet the definitional standards set forth in the GDPR as to what constitutes anonymized data and what constitutes pseudo-anonymized data; and
- h) Promptly notified and informed Vendor in writing what changes to Customer’s EU data privacy practices were made.
Customer shall at its sole cost and expense defend, hold harmless and indemnify Vendor, its employees, officers, directors, members, subcontractors and agents from any third party claim, action, proceeding, demand or inquiry, including any fines, fees, penalties, damages and the like (collectively a “Claim”) arising from or relating to a breach of any Customer’s representations or warranties or any allegation that Customer’s collection, use, handling, security or storage of the EU data provided to Vendor violates the GDPR, the laws of any applicable EU member country or any right afforded to an EU data subject.
- Data Breach Notification
Should there be a security breach of or unauthorized access to any EU data, each party shall notify the other without undue delay of any actual or suspected breach of confidentiality or data security involving the EU data soon as a party becomes aware. Each party shall also cooperate with the other party in promptly investigating such breach, hack or unauthorized access (collectively “Data Breach”), deploy diligent efforts to remedy the Data Breach, preserve all evidence and records relating to the Data Breach and develop a root cause and impact assessment and future mitigation plan as soon as possible. The parties agree to work together to determine the best timing, content and method for Data Breach notification under applicable law to the EU supervising authorities and/or EU data subjects, and each party shall bear its own costs and expenses incurred in investigating or reporting the breach, including notification costs and costs to obtain credit monitoring services and identity theft insurance for affected individuals, unless it can be established that the Data Breach was the result of the fault or negligence of a particular party in which case that party shall remain liable for all such costs.
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