SECTION 13 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT ARISE OR ARE ASSERTED IN CONNECTION WITH YOUR USE OF THIS WEBSITE, OUR SERVICES, AND OUR SOFTWARE. IN PARTICULAR, SECTION 13 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
You accept and agree to the terms of this Agreement on your own behalf and/or on behalf of your company or organization, as its authorized legal representative, by doing either of the following:
- checking the box displayed at the end of this Agreement if You are reading this on the Zultys website; or
- clicking an “I Agree” or similar button, where this option is provided by Zultys; or
- by using and accessing any of Zultys Websites, Services, Software, Apps or any other product or service we offer.
Zultys, Inc. (“Zultys”, “we”, “us”, or “our”) provides communication solutions to its customers (each a “Customer”) and their authorized users (each a “User” or “Users”). By using or accessing the Zultys website (the “Website”), mobile applications (“Apps”), software (“Software”), solutions, and any of the information and services offered through the Website, Apps, or Software (collectively referred to as the “Services”), you agree to be bound by this Agreement. Use of the Services depends on strict adherence to the terms of this Agreement by all of our Users.
By accessing or using the Services in any way, clicking on a button on the Website, downloading any Software, or taking similar actions to signify your affirmative acceptance of this Agreement, you hereby represent and warrant that:
- You have read, understand, and agree to be bound by all of the terms and conditions of this Agreement and any future amendments and additions to this Agreement as published from time to time at this link or through the Services;
- You are an authorized User of the Services in connection with an active Customer account, and you will only use and access the Services and Software while you remain an authorized User.
- You have full legal authority to enter into the Agreement on behalf of Your employer or other entity and to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement or use the Services on behalf of your employer or other entity.
- You will comply with all applicable laws, including those of the country, state, and city in which you are present while using the Services; and that the Services may only be used and accessed in geographical territories in which the Services (including VoIP) are lawful and authorized, and do not contravene or violate prevailing government regulations.
- Access. Subject to maintaining your eligibility to use the Services in accordance with Section 3 above, Zultys grants to you a limited, non-exclusive, personal, revocable, non-sublicensable, and non-transferable right and license: a) to use and access the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement; b) to download and use the Software only on a supported device or hardware system (e.g., laptop or desktop computer) (See: https://www.zultys.com/zac/; and c) the right to use and access the unpublished materials and documentation describing the Services and Software provided by Zultys. Use of and access to the Services and Software is permitted only by Users designated by Customer.
- Software; App Marketplaces. To the extent use of the Services requires User to install Software, subject to all of the terms and conditions of this Agreement, Zultys grants to User a limited, non-transferable, non-sublicensable, non-exclusive license during the applicable active use term, to use the object code form of the Software internally, but only in accordance with (a) the published documentation, (b) this Agreement and (c) the terms and conditions agreed to by Customer. To the extent a User accesses the Services or Software using a “mobile app” from the Apple Store or from Google Play (or any other third-party marketplaces as or if available), the User acknowledges that its use of the downloaded App may be subject to additional terms and conditions with the company permitting access to the Services mobile App download. Zultys disclaims any liability for Customer or its Users’ use of third-party online marketplaces.
- Suspension or Termination Rights. We reserve the right to temporarily deny you access to the Services or permanently terminate your access privileges at any time if, in our sole discretion, you have failed to abide by the terms of this Agreement or appear to us likely to do so. By agreeing to grant you access, we do not obligate ourselves to do so or to maintain the Services, or to maintain it in its present form, and we expressly reserve the right to modify, suspend, or terminate your access privileges.
- Accounts. Customer or Zultys’ channel partners with administrative access, will assign user IDs and passwords for each User to access the Services and specific User accounts. Users shall keep user ID and password information strictly confidential and not share such information with any unauthorized person and shall notify us immediately if there has been a breach of your security that affects our Services. Users acknowledge that Customer shall be responsible for any and all actions taken by Users on Customer’s account and for rescinding access to its account by any User that Customer no longer wishes to have access.
- Guest Users. Individuals who neither download the Software from the Zultys Website nor from a third-party App marketplace, and who not are personnel of an active Zultys Customer may still use and access the Services as a guest User invited by a Customer to access the Services for limited purposes and durations. Guest Users are subject to the terms and conditions of this Agreement and will be required to demonstrate their consent to this Agreement prior to using and accessing this Agreement.
- Prohibited Uses. You understand, acknowledge, and agree that you will strictly comply with all the use limitations and requirements of the Acceptable Use Policy set forth in Section 6 below. Customer and its Users shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Services or Software to a third party (except to Users as permitted herein); (b) use the Services or Software to provide or create, or incorporate the Services or Software into, any similar service provided to a third party or otherwise directly expose the functionality of the Services or Software to any third party (except to Users as permitted herein); (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Software or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Zultys); (d) copy or modify the Services or any Software (including any underlying workflows, algorithms, procedures or hierarchies), or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services or Software; (f) publicly disseminate information regarding the performance of the Services or Software; (g) adversely impact the speed, security or integrity of the Services (or any data contained within the Services); (h) conduct any penetration testing or exploit or attempt to exploit any vulnerabilities in the Services or Software, or (i) violate the Zultys Acceptable Use Policy set forth in Section 6 below.
- Acceptable Use Policy
By using the Services including the Website and the Software, you agree that:
- You will only use the Services for lawful purposes, and not for deceptive or fraudulent purposes; you will not send or store any unlawful material.
- You will not use the Services to cause nuisance, annoyance or inconvenience.
- You will not use the Services, or any content accessible through the Services, for advertising to, soliciting or selling to, any other Users.
- You will not violate the publicity or privacy rights of another individual.
- You will not copy or distribute any content displayed through the Services.
- You will not create or compile, directly or indirectly, any collection, compilation, or other directory from any content displayed through the Services except for your personal, noncommercial use.
- The information you provide to us or otherwise communicate with us is accurate.
- You will not use the Services in any way that could damage, disable, overburden, or impair any of our servers, or the networks connected to any of our servers.
- You will not attempt to gain unauthorized access to any part of the Services and/or to any service, account, resource, computer system, and/or network connected to any of our servers.
- You will not deep-link to the Services or access the Services manually or with any robot, spider, web crawler, extraction software, automated process, and/or device to scrape, copy, or monitor any portion of the Services or any content on the Services.
- You will report any errors, bugs, unauthorized access methodologies, or any breach of our intellectual property rights that you uncover in your use of the Services.
- You will not impersonate another person, act as another entity without authorization, or create multiple accounts.
- Information on our Services
- Information on the Services. While we will always use commercially reasonable efforts to ensure the accuracy and completeness of the information provided on our Services, we cannot guarantee the accuracy, adequacy, quality, or suitability of any data on our Services and expressly disclaim liability for errors and omissions in the contents of our Services. Any use or reliance on any content or materials posted via the Services or obtained by you through the Services is at your own risk. Any link to a website or phone number owned by a third party does not constitute an endorsement, approval, association, sponsorship, or affiliation with the linked site or phone number.
- Personally Identifiable Information. The customer shall indemnify and hold harmless Zultys from any claims, liabilities, losses, damages, or expenses arising from or related to the processing of all Personally Identifiable Information (PII). The customer acknowledges that it is solely responsible for the collection, storage, and use of PII in compliance with applicable data protection laws and regulations.
- User Submissions and Content
- We may provide you with interactive opportunities through the Services. You represent and warrant that you are the owner of, or otherwise have the right to provide, all User content that you submit, post and/or otherwise transmit through the Services. You hereby grant us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the user content in connection with our business and in all forms now known or hereafter invented, without notification to and/or approval by you, except as otherwise required by law.
- Intellectual Property Ownership
- Zultys IP Rights. We (and our licensors, where applicable) shall own all rights, titles, and interests, including all related intellectual property rights, in and to the Services, the Software, the App, and the Website. This Agreement does not represent a sale of goods or any other tangible or intangible personal property and does not convey to you any rights of ownership in or related to the Services, or any intellectual property rights owned by us. Our name, logo, and the product names associated with the Services are our trademarks or belong to third parties, and no right or license is granted to use them. You agree that you will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services.
- Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to us through our suggestion, feedback, or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback, except as otherwise required by law.
- Service Data. Notwithstanding anything to the contrary herein, you agree that Zultys may obtain technical and other data about your use of the Services or the Software (“Service Data”), and we may use and share the Service Data to improve, support, develop, provide and deliver reporting regarding the Services and the Software during and after the term of this Agreement, provided that when sharing the Service Data outside of Zultys’ internal business operations, Zultys does not identify you or the Customer as the source of such Service Data without the Customer’s prior written permission.
- Third-Party Interactions
The Services may contain links to or display content originating from third-party websites and advertisements (collectively, “Third-Party Websites & Advertisements”). Such Third-Party websites and advertisements are not under our control. We are not responsible for any Third-Party Websites or any Third-Party Advertisements. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party websites and advertisements, or their products or services. When you click on a link to a Third-Party Website or Advertisement, we will not warn you that you have left our Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. You use all links in Third-Party websites and advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You agree to indemnify and hold harmless Zultys and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your misuse of the Services, Software, App or Website; (b) your violation of this Agreement; or (c) your violation of any applicable laws, rules or regulations through or related to the use of the Services, Software, App or Website. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you also agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party, or the cost of any settlement, provided that any settlement entered into by you (or your company) provides for the unconditional release of all claims by or against Zultys. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by an Indemnified Party, or for such Indemnified Party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services. You agree that the provisions in this Section will survive any termination of your account, this Agreement, or your access to the Services.
- Disclaimer of Warranties
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SERVICES, SOFTWARE, APP OR THE WEBSITE IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SERVICES, SOFTWARE, APP OR THE WEBSITE AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SERVICES, SOFTWARE, APP OR THE WEBSITE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, OR THE TEXT, GRAPHICS OR LINKS.
- WE DO NOT WARRANT THAT THE SERVICES, SOFTWARE, APP OR THE WEBSITE WILL OPERATE ERROR-FREE OR THAT THE SERVICES, SOFTWARE, APP OR THE WEBSITE ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SERVICES, SOFTWARE, APP OR THE WEBSITE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS. ZULTYS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ZULTYS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
- ZULTYS HAS NO LIABILITY OR RESPONSIBILITY, AND USER AND CUSTOMER ARE SOLELY RESPONSIBLE, FOR ASSESSING WHETHER THE SERVICES, SOFTWARE, APP OR THE WEBSITE (INCLUDING ZULTYS’ SECURITY OBLIGATIONS) WILL MEET CUSTOMER’S REGULATORY OR OTHER LEGAL OBLIGATIONS. ZULTYS DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, SOFTWARE, APP OR THE WEBSITE WILL ACHIEVE YOU OR THE CUSTOMER’S DESIRED RESULTS AND ZULTYS DISCLAIMS ALL LIABILITY OF ANY KIND FOR DECISIONS MADE BASED ON USE OR OTHER RESULTS OF THE SERVICES, SOFTWARE, APP OR THE WEBSITE. ZULTYS HAS NO CONTROL OVER, AND WILL HAVE NO LIABILITY FOR, ANY ACTS OR OMISSIONS OF ANY USERS.
- YOU UNDERSTANDS THAT THE SERVICES DO NOT ALLOW AND SHOULD NOT BE USED FOR CALLS TO EMERGENCY SERVICES NUMBERS (E.G., IN THE UNITED STATES 911, OR IN THE UNITED KINGDOM 999 AND 112). WITHOUT LIMITING ANY OTHER DISCLAIMERS SET FORTH IN THIS AGREEMENT, ZULTYS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
- Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL ZULTYS BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR DATA BREACH, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES (INCLUDING ATTORNEYS’ FEES) IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWO (2) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Dispute Resolution; Agreement to Arbitration All Claims.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 14 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”
- Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services or as a consumer of our services, to any advertising or marketing communications regarding us or our Services, to any products or services sold or distributed through the Services that you received as a consumer, or to any aspect of your relationship or transactions with us as a consumer of our services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Zultys may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. IF YOU AGREE TO ARBITRATION WITH ZULTYS, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST US IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
- Informal Resolution. You and Zultys agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Zultys therefore agree that, before either you or Zultys demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Zultys that you intend to initiate an informal dispute resolution conference, email email@example.com providing your username associated with your Zultys account (if any), the email address associated with your Zultys account (if any), and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
- Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our headquarters at 785 Lucerne Drive, Sunnyvale, CA 94085. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, we will pay them for you. In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location.
- Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Zultys. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Zultys.
- Waiver of Jury Trial. YOU AND ZULTYS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Zultys are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 13(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
- Waiver of Class or Consolidated Actions. YOU AND ZULTYS AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Zultys is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 14.
- Batch Arbitrations. To increase efficiency of resolution, in the event 100 or more similar arbitration demands against Zultys, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You agree to cooperate in good faith with Zultys and the arbitration provider to implement such a batch approach to resolution and fees.
- Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Zultys can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Zultys in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your email address (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: firstname.lastname@example.org. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
- No Effect on Independent Contractor or Employment Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND ZULTYS RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR.
- Survival. This Arbitration Agreement will survive any termination of your relationship with us.
- Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to us.
- Exclusive Venue
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Zultys agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively within the State of California for courts situated in Santa Clara County, California, or in federal court for the Northern District of California.
Zultys may terminate this Agreement with you immediately upon written notice or with thirty (30) days prior written notice if required under applicable law if (a) you have breached any provision of this Agreement, any non-disclosure agreement, or other agreement relating to the Services or the Software; (b) Zultys is required to do so by law; (c) you cease being an authorized User; (d) Zultys decides to no longer provide the Services; or (e) you violate the Zultys Acceptable Use Policy. Where allowed under applicable law, Zultys may also terminate this Agreement with you for any reason with thirty (30) days prior written notice. If Zultys terminates this Agreement, you will no longer have access to the Services.
In addition to suspending or terminating your access to the Services, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
- No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Zultys or any third-party provider as a result of this Agreement or use of the Services.
- Choice of Law. This Agreement is governed by the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
- Severability. Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 17.4 will be null and void.
- Export Compliance. In its use of the Services and Software, you agree to comply with all export and import laws and regulations of the United States, the European Union and other applicable jurisdictions. Without limiting the foregoing, (i) you represent and warrant that you are not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) you shall not access or use the Services or Software in violation of any U.S. export embargo, prohibition or restriction, and (iii) you shall not submit to the Services or Software any information that is controlled under the U.S. International Traffic in Arms Regulations.
- Waiver of Breach. No delay or omission by either party to exercise any right or power arising upon the other party’s nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach.
- Electronic Communications. For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. You use of the Services, Software or Website is an express indication of your approval, adoption and consent to be bound the terms and conditions set forth in this Agreement.
- Contact Information
785 Lucerne Drive, Sunnyvale, CA 94085