These TERMS AND CONDITIONS (the “Agreement”) govern your use of the retail field communication service provided as an online, hosted solution, which may also be provided through a mobile application, (the “Service”) offered by Retail Zipline, Inc. (“Zipline”, “we” or “us”). Specific business terms associated with your subscription to the Service will be an order form executed by the parties that reference this Agreement (“Order Form”). This Agreement governs all Order Forms; any conflicting or additional terms, conditions, or obligations are of no force or effect unless agreed to in a writing signed by the parties. This Agreement is a legally binding contract between the entity accepting it (“you” or “your” or “Client”) and Zipline and is effective as long as any Order Form remains in effect. This Agreement is applicable to (a) the Client who initially sets up the Service and other employees that are granted ownership privileges by you, (b) employees who manage and run your organization that will publish information through the Service (“Publishers”), and c) employees who consume the information published through the Service by Publishers (“Members”). This Agreement must be accepted prior to accessing or using the Service. Do not access or use the Service if you are unwilling or unable to be bound by this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions of this Agreement.
- Scope of the Services. In accordance with the terms of this Agreement, the Service will be available to the Publishers and Members you authorize to use the service (collectively, “Users”). Your Users may use and have access to the Service and the associated generally published technical documentation for the Service (“Documentation”) provided such use and access is for your own internal business operations (and not for the benefit of a third party). If there are restrictions on your use of the Service, such as a limitation on the number or types of registered Users that may use the Service such restrictions will be in the applicable Order Form; you agree to use and access the Service in compliance with those restrictions. For the avoidance of doubt this Agreement only permits you to access and use the Service and you will not receive or have access to a copy of the code or software that underlies the Service (collectively the “Software”) or receive a copy of the Service itself.
- Support. Subject to the terms of this Agreement, Zipline will endeavor to provide you with reasonable support for the Service through telephone, electronic mail or another online mechanism, in accordance with Zipline’s support offerings, which may be updated by Zipline from time to time.
- Updates. As our business evolves, Zipline may change this Agreement, the Services, or the Documentation. If we make a material change to the Agreement, the Services, or the Documentation we will provide you with reasonable prior notice either by emailing the email address associated with your account or by posting a notice in the Service. You can review the most current version of the Agreement at any time by visiting this page. The revised terms and conditions will become effective on the date they are posted at this page, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this Agreement is not acceptable to you, your only remedy is to cancel your account and stop using the Services, which you may do by emailing email@example.com.
- Restrictions. Our reputation and the Service are important to us and we know your reputation is important to you. To that end, you agree to be a good citizen when you use the Service and not to, directly or indirectly: (a) modify, translate, copy or create derivative works based on the Service or any element of the Software, (b) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, (c) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service or the Software in whole or in part, except as and only to the extent this restriction is prohibited by law, (d) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement, (e) remove or obscure any Confidential or other notice contained in the Service, (f) use the Service in any way that violates any applicable federal, state, local or international law or regulation, (g) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, (h) introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, (i) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer or database connected to the Service.
- Permitted Use. You represent, covenant, and warrant that you will use the Service only in compliance with all applicable laws and regulations. Although you understand that Zipline has no obligation to monitor your use of the Service, you agree that Zipline may monitor your use of the Service and may prohibit any use it believes may be in violation of the restrictions in Section 4 or your warranties or representations hereunder. You also understand and agree that we may suspend your use and access or any User’s use and access to the Service that we reasonably believe may be in violation of this Section or Section 4.
- User Accounts. As part of the registration process, each User will receive a user name and password for your account. You may add new Users or change User permissions by contacting Zipline or making such changes in the Service. You will ensure that your Users are aware of and bound by obligations and restrictions consistent with this Agreement. You will (a) be responsible for ensuring the security of your account and confidentiality of all user IDs and passwords for the Service, (b) prevent unauthorized access to, or use of, the Service, (c) be fully responsible for monitoring and administrating the various uses and Users of the Service, (d) notify Zipline promptly of any unauthorized use of the Service or any breach, or attempted breach, of the security of the Service. You are responsible for all activities of your Users on the Service and are responsible for all uses of your account, whether or not you authorize such use. Zipline may access your User accounts, including relevant User Information (as defined below) (i) to respond to technical problems, (ii) in connection with providing and maintaining the Service and the development of new Service features and improvements, (iii) at your request, (iv) to comply with legal or contractual requirements, and (v) when necessary to provide the Professional Services.
- Your Equipment. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, phones, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You are responsible for: (i) maintaining the security of the Equipment; and (ii) all uses of the Equipment, whether or not authorized by you.
- Professional Services. Zipline will provide implementation and deployment services (if any) as further described in an Order Form (“Professional Services”). If either party requests a change in the scope of the Professional Services, any agreed-upon changes, including changes in Fees (as defined in Section 12(a) of this Agreement) and expenses, will only be binding if set forth in a writing executed by the parties (each a “Change Order”). Absent the execution of a Change Order, the parties will proceed to fulfill their obligations under the applicable Order Form in accordance with its original terms.
- Zipline’s Ownership. Zipline owns the Service, the Software, any underlying infrastructure, and anything Zipline creates or invents in the course of performing the Professional Services (collectively the “Zipline Materials”). You acknowledge and agree that (a) the Zipline Materials are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or Confidential rights laws, (b) Zipline retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Zipline Materials, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, (c) there are no implied licenses under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by Zipline, and (d) the Software and access to the Service are licensed, not sold and you acquire no ownership or other interest (other than the license rights expressly stated herein) in or to the Zipline Materials. The trademarks, service marks and logos of Zipline used in the Service (“Trademarks”) are also our property, or the property of their respective owners. You have no right to use any such Trademarks, and nothing contained in this web site or this Agreement grants any right to use (by implication, waiver, estoppel or otherwise) any Trademarks without our prior written permission or the prior written permission of the respective owner.
- Text Alerts/SMS. If a User provides Zipline with their mobile phone number when that User creates an account or otherwise provides its mobile number to Zipline, that User expressly opts-in to receive SMS and text messages from us relating to the Service. Users may also opt-in to SMS and text messages through a mobile application. For example, we may send Users SMS or text messages about your account and any activity that occurs on your account. You acknowledge that messaging and data rates may apply depending on your user’s mobile phone service providers and that you or your Users are solely responsible for paying for any such SMS text messaging fees. Users may opt-out of receiving SMS text messages at any time by emailing us at firstname.lastname@example.org or by texting STOP in response to the text messages Users receive.
- Content and User Information.
a. Content. In order to use the Service, you or your Users may add, upload, or transfer data, software, or information, including, without limitation, any recordings, sound, music, graphics, images, or text through the Service (“Content”); you grant Zipline and its licensors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to use, host, cache, publish, copy, and display such Content for the purpose of providing the Service or the Professional Services. Except as otherwise provided herein, you will own all right, title and interest in and to the Content. You represent and warrant that you own, or have the necessary permissions to use and authorize the use of the Content.
b. User Information. In order to use the Service, you or your Users will also provide personal information and other information in order to set up accounts within the Service. You grant Zipline and its subcontractors the right to store, process and retrieve the information associated with your User accounts, such as IP address, username, password, and any personally identifiable information (e.g., name, phone number, email address, etc.) (“User Information”), provided to Zipline in connection with your use of the Service. You warrant that you have obtained express consent from your Users to transfer User Information to Zipline and to process the User Information as contemplated by the Users’ use of the Service.
c. Data Processing. You acknowledge and agree that, except as expressly set forth herein, Zipline is not responsible for your Content or your User Information, that you are solely responsible to retain adequate back-ups of your Content, and that you assume all risk related to the transmission of Content and User Information to the Service. In addition, you acknowledge that, notwithstanding Zipline’s security precautions, your use of, or connection to, the Internet provides the opportunity for unauthorized third parties to gain access to the Service and therefore your Content or User Information. As such, Zipline cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet. You understand and agree that you assume all risk related to the transmission of User Information and Content to the Service and that any security precautions taken by Zipline may not be adequate or sufficient to prevent illegal access to your Content and User Information. You agree that we may transfer User Information to the United States and/or another country outside the European Economic Area. Zipline is a data processor (or sub-processor) acting on your behalf and you appoint and authorize Zipline and its affiliates and subsidiaries (and their successors and assigns, contractors and business partners) to transfer to, store and process User Information in any country where Zipline has facilities used in connection with the Service in order to provide the Service to you. In relation to all “personal data” (as defined in the Data Protection Act 1998, which also defines “processing” and “controller”), provided or disclosed by you (“controller”) under this Agreement that Zipline processes on behalf of the controller, Zipline will (a) comply with the controller’s reasonable instructions relating to the security and confidentiality of the personal data, and will keep it confidential and reasonably secure from disclosure to unauthorized third parties and (b) process that personal data only in accordance with the instructions of the controller.
a. Confidentiality and Non-use. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as the “Confidential Information” of the Disclosing Party). Our Confidential Information includes non-public information regarding features, functionality and performance of the Service. Your Confidential Information includes non-public data provided by you to Zipline to enable the provision of the Service, including the User Information and Content. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, (ii) not to use (except in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Confidential Information, (iv) protect the Confidential Information disclosed to it by the Disclosing Party with at least the same degree of care as it normally exercises to protect its own proprietary information of a similar nature, but in no event less than a reasonable standard of care, or (v) not copy, reverse engineer, decompile or disassemble any Confidential Information. The Receiving Party also agrees that, even within the Receiving Party, Confidential Information will be disseminated only to those employees, officers and directors with a clear and well-defined “need to know” purpose and who are informed of and bound by the obligations of this Agreement or a substantially similar agreement with terms just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement. The Disclosing Party agrees that the foregoing will 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 Confidential Information if required by a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) provided that prior to making any such disclosure, the Receiving Party will use commercially reasonable efforts to provide the Disclosing Party with (1) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy and (2) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
b. Feedback. You may, from time to time, provide suggestions, comments or other feedback with respect to the Service, the Professional Services, or the support services provided hereunder (“Feedback”). You agree that all Feedback is and will be given entirely voluntarily. Feedback, even if you designate it as confidential, will not be deemed to constitute Confidential Information or to impose any confidentiality obligations on Zipline. You grant Zipline a royalty-free, worldwide, perpetual, irrevocable license to use or incorporate into the Service or Professional Services any Feedback you or your Users provide. You agree that we are free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as we sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
c. Data Collection. As part of its Service, Zipline collects certain information relating to the use and performance of the Service. Notwithstanding anything to the contrary, Zipline will have the right to collect and analyze such data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies and Zipline will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other of our offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with our business. Zipline agrees that it will not use the data described in this Section in any manner that identifies you as a customer or user of the Service.
- Payment Terms.
a. Fees. You agree to pay the applicable fees in accordance with the terms stated on each Order Form (the “Fees”). Except as otherwise provided in this Agreement, Fees are non-cancellable and non-refundable. We may modify our Fees or introduce new fees when required by changes in our business or Service offerings; any new or revised fees will become effective upon the renewal of a Term by providing you with written notice at least forty-five (45) days before the end of the then current Term.
b. Invoicing. Zipline will invoice you in accordance with the schedule set forth in the applicable Order Form; Zipline must receive full payment for all invoices thirty (30) days after the date of the invoice.
c. Taxes. The Fees payable hereunder are exclusive of any sales, use, excise, value added, import, or other applicable taxes, tariffs or duties (“Taxes”). You are solely responsible for payment of all Taxes except for any taxes based solely on Zipline’s net income. If you are required to pay any Taxes, you will pay such Taxes with no reduction or offset in the Fees payable to Zipline hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible, you agree to pay such Taxes and we will charge your payment instrument or invoice the appropriate amount to be paid by you.
d. Overdue Fees. Overdue Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If you fail to pay any invoices in accordance with Section 13.2, we may suspend your use of and access to the Service pending payment of such overdue invoices; provided that we give you notice of such non-payment and ten (10) days (from the date of such notice) to remit the overdue fees in full. If you believe that we have billed you incorrectly, you must contact us no later than sixty (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.
e. Remote Audit. You understand that you may pay for the Service on a per-User basis. If your use of or payment for the Service is on a per-User basis, you agree to allow us to conduct periodic remote audits, including, but not limited to system scans, to verify your compliance with the provisions and restrictions of this Agreement. If such audit should disclose any unlicensed usage or unpaid fees, you will pay all amounts rightfully due to us together with interest at the rate of one and 1.5% per month or the highest interest rate allowed by law, whichever is less, from the date on which such amount became due. If such audit should disclose any payments owed in an amount greater than five percent (5%) of the Fees, then you will pay any and all costs associated with the audit. Client shall remit any payments due to Zipline under this Section within ten (10) days of receipt of notice of such payment.
- Term and Termination.
a. Term and Renewal. This Agreement is for the initial term stated on the Order Form and will be automatically renewed for additional periods equal to the renewal term set forth in the Order Form (collectively the “Term”), unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term.
b. Termination for Cause. In addition to any other remedies either party may have, each party may also terminate this Agreement if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within thirty (30) days’ (10 days in the event of non-payment) after notice.
c. Effect of Termination. Upon non-renewal or termination of this Agreement for any reason, you agree to pay in full for the Service up to and including the last day on which the Service is provided. If termination is due to our uncured breach, we will refund any pre-paid unused Fees to you within thirty (30) days of the effective date of termination of this Agreement. Upon expiration or termination of this Agreement, you agree to cease all use of the Service and associated documentation, installed or otherwise, and destroy all copies of any Software, deliverables and accompanying Documentation that are in your possession or under your control. Upon any termination, we will make all Content available to you for a period of thirty (30) days, but thereafter we may, but are not obligated to, delete stored Content.
d. Survival. Sections 9, 11.1, 11.2, 12, 13 (Section 13 only as to amounts due and owing), 14, 16, 17, 18, and 19.2 will survive the non-renewal or termination of this Agreement.
- Warranty. We will use reasonable efforts consistent with prevailing industry standards to (a) maintain the Service in a manner that minimizes errors and interruptions in the Service, (b) provide the Service in material compliance with the Documentation, and (c) provide the Professional Services and any support rendered hereunder in a professional and workmanlike manner. Notwithstanding the foregoing, the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Zipline or by third-party providers, or because of other causes beyond our reasonable control; we will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. The foregoing limited warranty does not cover issues or failure resulting from abuse, misuse, alteration, acts of nature or disaster, unauthorized repair or installation, or use of the Service or the Software on or in connection with any hardware or software not specified in the Documentation. Zipline’s sole liability (and your sole and exclusive remedy) for any breach of this warranty will be, in our sole discretion and at no charge to you to (a) use commercially reasonable efforts to provide you with an error correction or work-around that corrects the reported non-conformity if the breach of warranty concerns the Service or to re-perform the Professional Services if the breach of warranty concerns the Professional Services or support services or, if we determine such remedies to be impracticable, (b) allow you to terminate and receive as you sole remedy any prepaid fees for the remainder of any then current Term after the effective date of termination. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE, PROFESSIONAL SERVICES AND ANY SUPPORT SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND ZIPLINE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU FURTHER ACKNOWLEDGE THAT WE DO NOT WARRANT THAT (A) THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, (B) THE SERVICE WILL BE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (B) THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE, OR (C) THAT ANY RESULTS ARE GUARANTEED AS A RESULT OF USING THE SERVICE. YOU UNDERSTAND THAT EVEN THOUGH YOU MAY LINK TO THIRD PARTY SITES THROUGH USE OF THE SERVICE, THIRD PARTY SITES ARE NOT UNDER OUR CONTROL, AND WE ARE NOT RESPONSIBLE FOR THE CONTENTS OF ANY THIRD PARTY SITES, ANY LINKS CONTAINED IN THIRD PARTY SITES, OR ANY CHANGES OR UPDATES TO THIRD PARTY SITES.
a. By Us. We will defend any third party claim or action brought against you to the extent based on the allegation that the Software infringes any intellectual property right (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right) having effect in the United States and agree to pay any settlements that we agree to in a writing signed by our authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Software or portions or components of either that are (a) not provided by Zipline, (b) combined with other products, processes or materials that are not reasonably contemplated by the Documentation where the alleged infringement relates to such combination or (c) where your use of the Service is not strictly in accordance with this Agreement or the published Documentation.
b. By You. You agree to defend any third party claim or action brought against Zipline to the extent based on your alleged breach of Sections 5 or 11 and you agree to pay any settlements that you agree to in a writing signed by your authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
c. Procedures. Each party’s indemnification obligations are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any claim, (b) granting the indemnifying party the sole control of the defense or settlement of the claim and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense.
d. Options. If your use of the Service has become, or in our opinion is likely to become, the subject of any claim of infringement, we may at our option and expense, (a) procure for you the right to continue using and receiving the Service as set forth hereunder, (b) replace or modify the Service to make it non-infringing, (c) substitute an equivalent for the Service or (d) if we, in our sole discretion, determine that options (a)-(c) are not commercially practicable, terminate this Agreement and refund you any pre-paid, unused Fees paid for use of the Service.
e. SOLE REMEDY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION 16 STATES OUR ENTIRE RESPONSIBILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
- Limitation of Liability. Notwithstanding anything herein to the contrary, except for (i) your breach of Section 5 or 11, (ii) third party claims arising from your breach of Sections 5 or 11 (iii) either party’s breach of Section 12 or (iv) either party’s obligations under Section 16, neither party (nor any supplier or licensor of Zipline) will be liable with respect to any cause related to or arising out of this agreement, whether in an action based on a contract, tort (including negligence and strict liability) or any other legal theory, however arising, for (a) indirect, special, incidental or consequential damages, (b) any damages based on use or access, interruption, delay or inability to use the service, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, system incompatibility or provision of incorrect compatibility information or breaches in system security, or (c) any damages that in the aggregate exceed the total fees paid or payable by you for the Service that is or the Professional Services that are the subject of the claim during the twelve (12) month period immediately preceding the event which gives rise to such damages. These limitations will apply whether or not a party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy.
- General Terms. Client and Zipline are and at all times shall be and remain independent contractors as to each other. At no time shall either party be deemed to be the agent or employee of the other party, and no joint venture, partnership, agency or other similar relationship shall be created or implied by virtue of this Agreement. 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. You may not assign, transfer, or sublicense this Agreement or delegate or otherwise transfer any of your obligations or performance without Zipline’s prior written consent. Zipline may transfer and assign any of its rights and obligations under this Agreement without consent, which shall not be unreasonably withheld. Any purported assignment, delegation or transfer in violation of this provision is void. Zipline may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement (including subcontracting the provision of the Service or any portion thereof) 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. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Notices to be given or submitted by either party to other pursuant to this Agreement shall be in writing and directed to the address in the preamble to this Agreement or otherwise provided to the other party in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt), (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid or (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. Any claim brought by either party against the other shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City and County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Zipline reserves the right to use your name as a reference for marketing or promotional purposes on our website and in other communication with existing or potential Zipline clients: for example, we might list your company on our website under a list of Zipline’s current clients.
- Evaluation. If these terms will govern a no-charge evaluation of the Service, the following terms apply to such use of and access to the Service:
a. Warranty. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE SERVICE IS PROVIDED BY ZIPLINE IN AN “AS IS” CONDITION AS TO PERFORMANCE, ACCURACY, OR COMPLETENESS WITH NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED.
b. Limitation of Liability. THE FOLLOWING WILL APPLY IN PLACE OF SECTION 17 OF THIS AGREEMENT: IN NO EVENT WILL ZIPLINE, ITS SUPPLIERS OR ITS LICENSORS BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR DIRECT DAMAGES, DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY OR ANY OTHER TYPE OF INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THESE LIMITATIONS WILL APPLY EVEN IF ZIPLINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.