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0 Website Terms of Use Website Terms of Use
1 Effective as of November 1, 2016, Zendesk, Inc., (“Zendesk”) and its subsidiaries, (collectively, the “Zendesk Group” or “we” or “us” or “our”) have updated terms that apply to the use of our Websites (as herein defined). For the purposes of these Terms of Use, the term, “Websites”, shall refer collectively to www.zendesk.com as well as the other websites that the Zendesk Group operates and that link to these Terms of Use. Effective as of November 1, 2016, Zendesk, Inc., (“Zendesk”) and its subsidiaries, (collectively, the “Zendesk Group” or “we” or “us” or “our”) have updated terms that apply to the use of our Websites (as herein defined). For the purposes of these Terms of Use, the term, “Websites”, shall refer collectively to www.zendesk.com as well as the other websites that the Zendesk Group operates and that link to these Terms of Use.
2 We provide the Websites to you subject to these Terms of Use (“Terms”), which may be updated by us from time to time pursuant to Section 1 herein. By accessing and using the Websites, you accept and agree to be bound by these Terms, Zendesk’s Privacy Policy found here and Zendesk’s Cookie Policy found here . If you do not agree to these Terms, you should not access or use the Websites. In addition, when accessing the Websites you shall be subject to any posted guidelines or rules applicable to the Websites, which may be posted and modified from time to time. All such guidelines or rules are hereby incorporated by reference into these Terms. We provide the Websites to you subject to these Terms of Use (“Terms”), which may be updated by us from time to time pursuant to Section 1 herein. By accessing and using the Websites, you accept and agree to be bound by these Terms, Zendesk’s Privacy Policy found here and Zendesk’s Cookie Policy found here . If you do not agree to these Terms, you should not access or use the Websites. In addition, when accessing the Websites you shall be subject to any posted guidelines or rules applicable to the Websites, which may be posted and modified from time to time. All such guidelines or rules are hereby incorporated by reference into these Terms.
3 These Terms do not apply to your access to and use of the products and services which we market for subscription on our Websites (our “Services”). The practices and policies, including how we protect, collect, and use electronic data, text, messages, communications or other materials submitted to and stored within the Services by You (“Service Data”) are detailed in and governed by our Master Subscription Agreement, available here , or such other applicable agreement between you and any member of the Zendesk Group relating to your access to and use of such Services (“Service Agreement”). These Terms do not apply to your access to and use of the products and services which we market for subscription on our Websites (our “Services”). The practices and policies, including how we protect, collect, and use electronic data, text, messages, communications or other materials submitted to and stored within the Services by You (“Service Data”) are detailed in and governed by our Master Subscription Agreement, available here , or such other applicable agreement between you and any member of the Zendesk Group relating to your access to and use of such Services (“Service Agreement”).
4 1. Changes to Terms. These Terms, or any part thereof, may be modified by us, including the addition or removal of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your use of the Websites after such posting shall be deemed to constitute acceptance by you of such modifications, additions or deletions. 1. Changes to Terms. These Terms, or any part thereof, may be modified by us, including the addition or removal of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your use of the Websites after such posting shall be deemed to constitute acceptance by you of such modifications, additions or deletions.
5 2. Changes to Websites. We may change or discontinue any aspect, service or feature of the Websites at any time, including, but not limited to, content, availability, and equipment needed for access or use. 2. Changes to Websites. We may change or discontinue any aspect, service or feature of the Websites at any time, including, but not limited to, content, availability, and equipment needed for access or use.
6 3. Registration. You may be given the opportunity to register via an online registration form or by participating in Interactive Areas, such as forums and other community features, to create a user account (“Your Account”) that may allow you to receive information from us and/or to participate in certain features on the Websites. We will use the information you provide in accordance with the Privacy Policy. By registering you represent and warrant that all information that you provide on the registration form is current, complete and accurate to the best of your knowledge. You agree to maintain and promptly update your registration information on the Websites so that it remains current, complete and accurate. You are responsible for obtaining and maintaining all connectivity, computer software, hardware and other equipment needed for access to and use of the Websites and all charges related to the same. 3. Registration. You may be given the opportunity to register via an online registration form or by participating in Interactive Areas, such as forums and other community features, to create a user account (“Your Account”) that may allow you to receive information from us and/or to participate in certain features on the Websites. We will use the information you provide in accordance with the Privacy Policy. By registering you represent and warrant that all information that you provide on the registration form is current, complete and accurate to the best of your knowledge. You agree to maintain and promptly update your registration information on the Websites so that it remains current, complete and accurate. You are responsible for obtaining and maintaining all connectivity, computer software, hardware and other equipment needed for access to and use of the Websites and all charges related to the same.
7 4. User Content Guidelines. The following terms apply to content submitted by you: 4. User Content Guidelines. The following terms apply to content submitted by you:
8 4.1 The Websites may contain comments sections, discussion forums, or other interactive features (“Interactive Areas”) in which you may post or upload user-generated content, comments, video, photos, messages, other materials or items (collectively, “User Content”). You are solely responsible for your use of any Interactive Areas and you use them at your own risk. Interactive Areas are available for individuals aged 13 years or older. By submitting User Content to an Interactive Area, you represent that you are 13 years of age or older and, if you are under the age of 18, you either are an emancipated minor or have obtained the legal consent of your parent or legal guardian to enter into these Terms, submit content, and participate on the Websites. 4.1 The Websites may contain comments sections, discussion forums, or other interactive features (“Interactive Areas”) in which you may post or upload user-generated content, comments, video, photos, messages, other materials or items (collectively, “User Content”). You are solely responsible for your use of any Interactive Areas and you use them at your own risk. Interactive Areas are available for individuals aged 13 years or older. By submitting User Content to an Interactive Area, you represent that you are 13 years of age or older and, if you are under the age of 18, you either are an emancipated minor or have obtained the legal consent of your parent or legal guardian to enter into these Terms, submit content, and participate on the Websites.
9 4.2 By submitting any User Content or participating in an Interactive Area within or in connection with the Websites, you agree that you will not upload, post or otherwise transmit any User Content that (a) violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk or threaten others; (b) you know to be false, misleading or inaccurate; (c) contains blatant expressions of bigotry, racism, racially or ethnically offensive content, hate speech, abusiveness, vulgarity or profanity; (d) contains or advocates pornography or sexually explicit content, pedophilia, incest, bestiality, or that is otherwise obscene or lewd; (e) violates any law or advocates or provides instruction on dangerous, illegal, or predatory acts, or discusses illegal activities with the intent to commit them; (f) advocates violent behavior; (g) poses a reasonable threat to personal or public safety; (h) contains violent images of killing or physical abuse that appear to have been captured solely, or principally, for exploitative, prurient, or gratuitous purposes; (i) is protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express permission of the owner of such copyright, trademark, trade secret, right of publicity or other proprietary right. The burden of determining that any User Content is not protected by copyright, trademark, trade secret, right of publicity or other proprietary right rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, trade secrets, rights of publicity or other proprietary rights or any other harm resulting from such a submission. Any person determined by Zendesk, in its sole discretion, to have violated the intellectual property or other rights of others shall be barred from submitting or posting any further material on the Websites; (j) does not generally pertain to the designated topic or theme of any Interactive Area; (k) contains any unsolicited or unauthorized advertising or promotional materials with respect to products or services, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation; or (l) uses the name or likeness of an identifiable natural person without such person’s consent. 4.2 By submitting any User Content or participating in an Interactive Area within or in connection with the Websites, you agree that you will not upload, post or otherwise transmit any User Content that (a) violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk or threaten others; (b) you know to be false, misleading or inaccurate; (c) contains blatant expressions of bigotry, racism, racially or ethnically offensive content, hate speech, abusiveness, vulgarity or profanity; (d) contains or advocates pornography or sexually explicit content, pedophilia, incest, bestiality, or that is otherwise obscene or lewd; (e) violates any law or advocates or provides instruction on dangerous, illegal, or predatory acts, or discusses illegal activities with the intent to commit them; (f) advocates violent behavior; (g) poses a reasonable threat to personal or public safety; (h) contains violent images of killing or physical abuse that appear to have been captured solely, or principally, for exploitative, prurient, or gratuitous purposes; (i) is protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express permission of the owner of such copyright, trademark, trade secret, right of publicity or other proprietary right. The burden of determining that any User Content is not protected by copyright, trademark, trade secret, right of publicity or other proprietary right rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, trade secrets, rights of publicity or other proprietary rights or any other harm resulting from such a submission. Any person determined by Zendesk, in its sole discretion, to have violated the intellectual property or other rights of others shall be barred from submitting or posting any further material on the Websites; (j) does not generally pertain to the designated topic or theme of any Interactive Area; (k) contains any unsolicited or unauthorized advertising or promotional materials with respect to products or services, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation; or (l) uses the name or likeness of an identifiable natural person without such person’s consent.
10 4.3 You agree not to represent or suggest, directly or indirectly, the Zendesk Group’s endorsement of User Content. 4.3 You agree not to represent or suggest, directly or indirectly, the Zendesk Group’s endorsement of User Content.
11 4.4 You agree not to upload, post or otherwise transmit any User Content, software or other materials which contain a virus or other harmful or disruptive component. 4.4 You agree not to upload, post or otherwise transmit any User Content, software or other materials which contain a virus or other harmful or disruptive component.
12 4.5 You agree not to use any service, technology or automated system to artificially inflate the page views that your User Content receives. This includes pay-per-click services, web “robots” and any other current or future technologies. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf. 4.5 You agree not to use any service, technology or automated system to artificially inflate the page views that your User Content receives. This includes pay-per-click services, web “robots” and any other current or future technologies. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf.
13 4.6 You agree not to use any technology, service or automated system to post more User Content than an individual could upload in a given period of time. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf. 4.6 You agree not to use any technology, service or automated system to post more User Content than an individual could upload in a given period of time. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf.
14 4.7 Any conduct that we, in our sole discretion, believe restricts or inhibits anyone else from using or enjoying the Websites will not be permitted. We reserve the right in our sole discretion to remove or edit User Content submitted by you. 4.7 Any conduct that we, in our sole discretion, believe restricts or inhibits anyone else from using or enjoying the Websites will not be permitted. We reserve the right in our sole discretion to remove or edit User Content submitted by you.
15 4.8 We are not responsible for the accuracy or credibility of any User Content, and do not take any responsibility or assume any liability for any actions you may take as a result of reading User Content posted on the Websites. Through your use of Interactive Areas, you may be exposed to content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using Interactive Areas, you assume all associated risks. 4.8 We are not responsible for the accuracy or credibility of any User Content, and do not take any responsibility or assume any liability for any actions you may take as a result of reading User Content posted on the Websites. Through your use of Interactive Areas, you may be exposed to content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using Interactive Areas, you assume all associated risks.
16 4.9 We have the right, but not the obligation, to monitor User Content posted or uploaded to the Websites to determine compliance with these Terms and any operating rules established by us and to satisfy any law, regulation or authorized government request. Although we have no obligation to monitor, screen, edit or remove any of the User Content posted or uploaded to the Websites, we reserve the right, and have absolute discretion, to screen, edit, refuse to post or remove without notice any User Content posted or uploaded to the Websites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content posted to the Websites at your sole cost and expense. The decision by Zendesk to monitor and/or modify User Content does not constitute nor shall it be deemed to constitute any responsibility or liability in any manner on our part in connection with or arising from your use of Interactive Areas on the Websites. 4.9 We have the right, but not the obligation, to monitor User Content posted or uploaded to the Websites to determine compliance with these Terms and any operating rules established by us and to satisfy any law, regulation or authorized government request. Although we have no obligation to monitor, screen, edit or remove any of the User Content posted or uploaded to the Websites, we reserve the right, and have absolute discretion, to screen, edit, refuse to post or remove without notice any User Content posted or uploaded to the Websites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content posted to the Websites at your sole cost and expense. The decision by Zendesk to monitor and/or modify User Content does not constitute nor shall it be deemed to constitute any responsibility or liability in any manner on our part in connection with or arising from your use of Interactive Areas on the Websites.
17 4.10 By submitting User Content to the Websites, you automatically grant us a royalty-free, perpetual, irrevocable, non-exclusive, worldwide right and license to use, publish, reproduce, modify, adapt, edit, translate, create derivative works from, incorporate into other works, distribute, sublicense (through multiple tiers) and otherwise exploit such User Content (in whole or in part) in any form, media or technology now known or hereafter developed, without payment to you or to any third parties. Additionally, to the fullest extent permitted under applicable law, you waive your moral rights in the User Content and agree not to assert such rights against us. You represent and warrant to us that you have the full legal right, power and authority to grant to us the license provided for herein, that you own or control the complete exhibition and other rights to the User Content you submitted for the purposes contemplated in this license and that neither the User Content nor the exercise of the rights granted herein shall violate these Terms, or infringe upon any rights, including the right of privacy or right of publicity, or constitute a libel or slander against, or violate any common law or any other right of, or cause injury to, any person or entity. You further grant to us the right, but not the obligation, to pursue at law any person or entity that violates your or our rights in the User Content by a breach of these Terms. 4.10 By submitting User Content to the Websites, you automatically grant us a royalty-free, perpetual, irrevocable, non-exclusive, worldwide right and license to use, publish, reproduce, modify, adapt, edit, translate, create derivative works from, incorporate into other works, distribute, sublicense (through multiple tiers) and otherwise exploit such User Content (in whole or in part) in any form, media or technology now known or hereafter developed, without payment to you or to any third parties. Additionally, to the fullest extent permitted under applicable law, you waive your moral rights in the User Content and agree not to assert such rights against us. You represent and warrant to us that you have the full legal right, power and authority to grant to us the license provided for herein, that you own or control the complete exhibition and other rights to the User Content you submitted for the purposes contemplated in this license and that neither the User Content nor the exercise of the rights granted herein shall violate these Terms, or infringe upon any rights, including the right of privacy or right of publicity, or constitute a libel or slander against, or violate any common law or any other right of, or cause injury to, any person or entity. You further grant to us the right, but not the obligation, to pursue at law any person or entity that violates your or our rights in the User Content by a breach of these Terms.
18 5. User Conduct Guidelines. The following terms apply to your conduct when accessing or using the Websites: (a) you agree not to interfere with or disrupt the Websites or the servers or networks connected to the Websites, or disobey any requirements, procedures, policies or regulations of networks connected to the Websites; (b) you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Websites, use of the Websites, or access to the Websites; (c) you agree not to engage in any activity that would constitute a criminal offense or give rise to a civil liability; (d) you agree not to impersonate any person or entity, including, but not limited to, the Zendesk Group or any Zendesk Group employee, or falsely state or otherwise misrepresent your affiliation with any person or entity; and (e) you agree not to interfere with any other user’s right to privacy, including by harvesting or collecting personally-identifiable information about users of the Websites or posting private information about a third party. 5. User Conduct Guidelines. The following terms apply to your conduct when accessing or using the Websites: (a) you agree not to interfere with or disrupt the Websites or the servers or networks connected to the Websites, or disobey any requirements, procedures, policies or regulations of networks connected to the Websites; (b) you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Websites, use of the Websites, or access to the Websites; (c) you agree not to engage in any activity that would constitute a criminal offense or give rise to a civil liability; (d) you agree not to impersonate any person or entity, including, but not limited to, the Zendesk Group or any Zendesk Group employee, or falsely state or otherwise misrepresent your affiliation with any person or entity; and (e) you agree not to interfere with any other user’s right to privacy, including by harvesting or collecting personally-identifiable information about users of the Websites or posting private information about a third party.
19 6. Intellectual Property Rights. All text, graphics, photographs, trademarks, logos, icons, user interfaces, sounds, music, videos, artwork, software and computer code (collectively, “Content”), including but not limited to the “look and feel”, layout, design, structure, color scheme, selection, combination and arrangement of the Content present on the Websites is owned by or licensed to us. Such Content is protected by copyright, trademark, trade dress and various other intellectual property and unfair competition laws. 6. Intellectual Property Rights. All text, graphics, photographs, trademarks, logos, icons, user interfaces, sounds, music, videos, artwork, software and computer code (collectively, “Content”), including but not limited to the “look and feel”, layout, design, structure, color scheme, selection, combination and arrangement of the Content present on the Websites is owned by or licensed to us. Such Content is protected by copyright, trademark, trade dress and various other intellectual property and unfair competition laws.
20 Except with our express written permission or as permitted by applicable laws, you may not copy, distribute, reproduce, mirror, frame, publicly display, publicly perform, translate, create derivative works of, re-publish or transmit the Websites or Content (in whole or in part) in any way or through any medium for distribution, publication or any commercial purpose. Except with our express written permission or as permitted by applicable laws, you may not copy, distribute, reproduce, mirror, frame, publicly display, publicly perform, translate, create derivative works of, re-publish or transmit the Websites or Content (in whole or in part) in any way or through any medium for distribution, publication or any commercial purpose.
21 You may display, copy and download Content from the Websites solely for your personal and non­-commercial use provided that: (a) you do not remove any copyright or proprietary notice from the Content; (b) such Content will not be copied or posted on any networked computer or published in any medium; and (c) no modifications are made to such Content. You may display, copy and download Content from the Websites solely for your personal and non­-commercial use provided that: (a) you do not remove any copyright or proprietary notice from the Content; (b) such Content will not be copied or posted on any networked computer or published in any medium; and (c) no modifications are made to such Content.
22 7. Disclaimer of Warranty; Limitation of Liability. 7. Disclaimer of Warranty; Limitation of Liability.
23 (A) YOU EXPRESSLY AGREE THAT USE OF THE WEBSITES IS AT YOUR SOLE RISK. THE ZENDESK GROUP, ITS OTHER AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS OR LICENSORS DO NOT WARRANT THAT USE OF THE WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITES, NOR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE WEBSITES. (A) YOU EXPRESSLY AGREE THAT USE OF THE WEBSITES IS AT YOUR SOLE RISK. THE ZENDESK GROUP, ITS OTHER AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS OR LICENSORS DO NOT WARRANT THAT USE OF THE WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITES, NOR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE WEBSITES.
24 (B) THE WEBSITES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS. (B) THE WEBSITES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS.
25 (C) TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL THE ZENDESK GROUP, OR ITS FUTURE PARENT OR AFFILIATED COMPANIES, BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION OR FOR ANY FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION ARISING OUT OF USE OF THE WEBSITES OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OR DELAY IN SERVICE, OPERATION, OR TRANSMISSION OF THE WEBSITES, OR ANY ALLEGED COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF PROPERTY, AND/OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OR POSTING OF ANY RECORD, CONTENT, OR TECHNOLOGY, PERTAINING TO OR ON THE WEBSITES. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF THE ZENDESK GROUP OR FUTURE PARENT OR AFFILIATED COMPANIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT THE ZENDESK GROUP OR FUTURE PARENT OR AFFILIATED COMPANIES ARE NOT LIABLE FOR ANY ACTUAL OR ALLEGED DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF THE WEBSITES OR ANY OTHER THIRD PARTIES. (C) TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL THE ZENDESK GROUP, OR ITS FUTURE PARENT OR AFFILIATED COMPANIES, BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION OR FOR ANY FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION ARISING OUT OF USE OF THE WEBSITES OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OR DELAY IN SERVICE, OPERATION, OR TRANSMISSION OF THE WEBSITES, OR ANY ALLEGED COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF PROPERTY, AND/OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OR POSTING OF ANY RECORD, CONTENT, OR TECHNOLOGY, PERTAINING TO OR ON THE WEBSITES. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF THE ZENDESK GROUP OR FUTURE PARENT OR AFFILIATED COMPANIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT THE ZENDESK GROUP OR FUTURE PARENT OR AFFILIATED COMPANIES ARE NOT LIABLE FOR ANY ACTUAL OR ALLEGED DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF THE WEBSITES OR ANY OTHER THIRD PARTIES.
26 IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
27 (D) We disclaim any and all liability of any kind for any unauthorized access to or use of your personally identifiable information. By accessing the Websites, you acknowledge and agree to our disclaimer of any such liability. If you do not agree, you should not access or use the Websites. (D) We disclaim any and all liability of any kind for any unauthorized access to or use of your personally identifiable information. By accessing the Websites, you acknowledge and agree to our disclaimer of any such liability. If you do not agree, you should not access or use the Websites.
28 8. Indemnification. You agree to defend, indemnify and hold harmless the Zendesk Group, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of the Websites by you. The Zendesk Group reserves the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this section. In such event, you shall provide Zendesk with such cooperation as is reasonably requested by the Zendesk Group. 8. Indemnification. You agree to defend, indemnify and hold harmless the Zendesk Group, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use of the Websites by you. The Zendesk Group reserves the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this section. In such event, you shall provide Zendesk with such cooperation as is reasonably requested by the Zendesk Group.
29 9. Termination. We may terminate or suspend these Terms at any time without notice to you. Without limiting the foregoing, we shall have the right to immediately terminate your access to the Websites in the event of any conduct by you which we, in our sole discretion, consider to be unacceptable, or in the event of any breach by you of these Terms. The provisions of Sections 2, and 5-12 shall survive termination of these Terms. 9. Termination. We may terminate or suspend these Terms at any time without notice to you. Without limiting the foregoing, we shall have the right to immediately terminate your access to the Websites in the event of any conduct by you which we, in our sole discretion, consider to be unacceptable, or in the event of any breach by you of these Terms. The provisions of Sections 2, and 5-12 shall survive termination of these Terms.
30 10. Governing Law. The content, data, video, and all other material and features on the Websites are presented for the purpose of providing entertainment, news and/or information and/or promoting programs, films, music, games, and other products and/or services that are or may become available in the United States, its territories, possessions, and protectorates. 10. Governing Law. The content, data, video, and all other material and features on the Websites are presented for the purpose of providing entertainment, news and/or information and/or promoting programs, films, music, games, and other products and/or services that are or may become available in the United States, its territories, possessions, and protectorates.
31 Any and all disputes, claims and controversies arising out of or in connection with your access to, and/or use of the Websites, and/or the provision of content, services, and/or technology on or through the Websites shall be governed by and construed exclusively in accordance with the laws and decisions of the State of California applicable to contracts made, entered into and performed entirely therein, without giving effect to its conflict of laws provisions. Any and all disputes, claims and controversies arising out of or in connection with your access to, and/or use of the Websites, and/or the provision of content, services, and/or technology on or through the Websites shall be governed by and construed exclusively in accordance with the laws and decisions of the State of California applicable to contracts made, entered into and performed entirely therein, without giving effect to its conflict of laws provisions.
32 Please report any violations of these Terms to the Zendesk Legal Department . Please report any violations of these Terms to the Zendesk Legal Department .
33 11. Copyrights and Copyright Agent. We respect others’ intellectual property rights, and expect our users and customers to do the same. If you believe that your work has been copied on the Websites in a way that constitutes copyright infringement, please follow the procedures outlined in Zendesk’s Copyright Infringement Notice & Takedown Policy . We reserve the right to terminate access to the Websites for users or customers who post material that infringes the intellectual property rights of others. 11. Copyrights and Copyright Agent. We respect others’ intellectual property rights, and expect our users and customers to do the same. If you believe that your work has been copied on the Websites in a way that constitutes copyright infringement, please follow the procedures outlined in Zendesk’s Copyright Infringement Notice & Takedown Policy . We reserve the right to terminate access to the Websites for users or customers who post material that infringes the intellectual property rights of others.
34 12. Miscellaneous. These Terms and any operating rules for the Websites established by us constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. The provisions of these Terms are for the benefit of the Zendesk Group, its affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any part of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, it will be replaced with language reflecting the original purpose in a valid and enforceable manner. The enforceable sections of these Terms will remain binding upon the parties. The section headings used herein are for convenience only and shall not be given any legal import. 12. Miscellaneous. These Terms and any operating rules for the Websites established by us constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. The provisions of these Terms are for the benefit of the Zendesk Group, its affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any part of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, it will be replaced with language reflecting the original purpose in a valid and enforceable manner. The enforceable sections of these Terms will remain binding upon the parties. The section headings used herein are for convenience only and shall not be given any legal import.
35 Non-English translations of this Policy are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls. Non-English translations of this Policy are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls.
36 These Terms were last updated on November 1, 2016. These Terms were last updated on November 1, 2016.
37 Privacy Policy Privacy Policy
38 Effective as of November 1, 2016, Zendesk, Inc., (“Zendesk”) and its subsidiaries, (collectively, the “Zendesk Group” or “we” or “us” or “our”) have updated our Privacy Policy (“Policy”). For a prior version of our Privacy Policy, click here . Effective as of November 1, 2016, Zendesk, Inc., (“Zendesk”) and its subsidiaries, (collectively, the “Zendesk Group” or “we” or “us” or “our”) have updated our Privacy Policy (“Policy”). For a prior version of our Privacy Policy, click here .
39 1. Introduction 1. Introduction
40 This Policy details our commitment to protecting the privacy of individuals who visit our Websites (as herein defined) (“Website Visitors”), who register to use our Services, or who attend or register to attend sponsored events or other events at which the Zendesk Group participates (“Attendees”). For the purposes of this Policy, the term, “Websites”, shall refer collectively to www.zendesk.com as well as the other websites that the Zendesk Group operates and that link to this Policy. This Policy details our commitment to protecting the privacy of individuals who visit our Websites (as herein defined) (“Website Visitors”), who register to use our Services, or who attend or register to attend sponsored events or other events at which the Zendesk Group participates (“Attendees”). For the purposes of this Policy, the term, “Websites”, shall refer collectively to www.zendesk.com as well as the other websites that the Zendesk Group operates and that link to this Policy.
41 2. Scope Of This Policy 2. Scope Of This Policy
42 In addition to the Websites that link to this Policy, this Policy applies to the following: In addition to the Websites that link to this Policy, this Policy applies to the following:
43 The Zendesk Marketplace , which is an online marketplace for on-demand web applications utilized in conjunction with some of the Services. The Zendesk Group and third parties may post applications to the Zendesk Marketplace. When we post an application and the application links to this Policy, this Policy applies. When a third party posts an application, the privacy policy of the third party applies. The Zendesk Marketplace , which is an online marketplace for on-demand web applications utilized in conjunction with some of the Services. The Zendesk Group and third parties may post applications to the Zendesk Marketplace. When we post an application and the application links to this Policy, this Policy applies. When a third party posts an application, the privacy policy of the third party applies.
44 The Zendesk Developer Portal , which enables Subscribers to create web applications and other integrations with our Services. For the purposes of this Policy, “Subscriber”, as the term is used herein, shall refer to an individual or an entity that has agreed to a Service Agreement for use of our Services. The Zendesk Developer Portal , which enables Subscribers to create web applications and other integrations with our Services. For the purposes of this Policy, “Subscriber”, as the term is used herein, shall refer to an individual or an entity that has agreed to a Service Agreement for use of our Services.
45 In this Policy, personal information means information relating to an identified or identifiable natural person. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity. In this Policy, personal information means information relating to an identified or identifiable natural person. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity.
46 Our Websites may contain links to other websites and the information practices and the content of such other websites are governed by the privacy statements of such other websites. We encourage you to review the privacy statements of any such other websites to understand their information practices. Our Websites may contain links to other websites and the information practices and the content of such other websites are governed by the privacy statements of such other websites. We encourage you to review the privacy statements of any such other websites to understand their information practices.
47 With the exception of Account Information (as defined below) and other information we collect in connection with your registration or authentication into our Services (as defined below), this Policy does not apply to our security and privacy practices in connection with your access to and use of the products and services which we market for subscription on our Websites (our “Services”). These security and privacy practices, including how we protect, collect, and use electronic data, text, messages, communications or other materials submitted to and stored within the Services by You (“Service Data”), are detailed in and governed by our Master Subscription Agreement, available here , or such other applicable agreement between you and any member of the Zendesk Group relating to your access to and use of such Services (“Service Agreement”). With the exception of Account Information (as defined below) and other information we collect in connection with your registration or authentication into our Services (as defined below), this Policy does not apply to our security and privacy practices in connection with your access to and use of the products and services which we market for subscription on our Websites (our “Services”). These security and privacy practices, including how we protect, collect, and use electronic data, text, messages, communications or other materials submitted to and stored within the Services by You (“Service Data”), are detailed in and governed by our Master Subscription Agreement, available here , or such other applicable agreement between you and any member of the Zendesk Group relating to your access to and use of such Services (“Service Agreement”).
48 Subscribers to our Services are solely responsible for establishing policies for and ensuring compliance with all applicable laws and regulations, as well as any and all privacy policies, agreements or other obligations, relating to the collection of personal information in connection with the use of our Services by individuals with whom our Subscribers interact. If you are an individual who interacts with a Subscriber using our Services, then you will be directed to contact our Subscriber for assistance with any requests or questions relating to your personal information. Subscribers to our Services are solely responsible for establishing policies for and ensuring compliance with all applicable laws and regulations, as well as any and all privacy policies, agreements or other obligations, relating to the collection of personal information in connection with the use of our Services by individuals with whom our Subscribers interact. If you are an individual who interacts with a Subscriber using our Services, then you will be directed to contact our Subscriber for assistance with any requests or questions relating to your personal information.
49 We collect information under the direction of our Subscribers, and have no direct relationship with individuals whose personal information we process in connection with the use of our Services. If you are an individual who interacts with a Subscriber using our Services (such as a customer of one of our Subscribers) and would no longer like to be contacted by one of our Subscribers that use our Services, please contact the Subscriber that you interact with directly. We collect information under the direction of our Subscribers, and have no direct relationship with individuals whose personal information we process in connection with the use of our Services. If you are an individual who interacts with a Subscriber using our Services (such as a customer of one of our Subscribers) and would no longer like to be contacted by one of our Subscribers that use our Services, please contact the Subscriber that you interact with directly.
50 We may transfer personal information to companies that help us provide our Services. Transfers to subsequent third parties for these purposes are governed by the Service Agreements with our Subscribers. We may transfer personal information to companies that help us provide our Services. Transfers to subsequent third parties for these purposes are governed by the Service Agreements with our Subscribers.
51 3. Information That You Provide To Us 3. Information That You Provide To Us
52 Account and Registration Information: Account and Registration Information:
53 We ask for and collect personal information about you such as your name, address, phone number, email address, instant messaging ID, and credit card information, as well as certain related information like your company name and website name, when you register for an account to access or utilize one or more of our Services (an “Account”). We also ask for and collect personal information such as an email address and a name or alias from any individual that you authorize to log into and utilize our Services in connection with Your Account. We ask for and collect personal information about you such as your name, address, phone number, email address, instant messaging ID, and credit card information, as well as certain related information like your company name and website name, when you register for an account to access or utilize one or more of our Services (an “Account”). We also ask for and collect personal information such as an email address and a name or alias from any individual that you authorize to log into and utilize our Services in connection with Your Account.
54 If you sign-up for a free trial Account, you are not required to enter your credit card information unless and until you decide to continue with a paid subscription to our Services. A third-party intermediary is used to manage credit card processing. This intermediary is not permitted to store, retain, or use your billing information for any purpose except for credit card processing on our behalf. If you sign-up for a free trial Account, you are not required to enter your credit card information unless and until you decide to continue with a paid subscription to our Services. A third-party intermediary is used to manage credit card processing. This intermediary is not permitted to store, retain, or use your billing information for any purpose except for credit card processing on our behalf.
55 We refer to any information described above as “Account Information” for the purposes of this Policy. By voluntarily providing us with Account Information, you represent that you are the owner of such personal data or are otherwise authorized to provide it to us. We refer to any information described above as “Account Information” for the purposes of this Policy. By voluntarily providing us with Account Information, you represent that you are the owner of such personal data or are otherwise authorized to provide it to us.
56 Other Submissions: Other Submissions:
57 We ask for and collect personal information from you when you submit web forms on our Websites or as you use interactive features of the Websites, including, participation in surveys, contests, promotions, sweepstakes, requesting customer support, or communicating with us. We ask for and collect personal information from you when you submit web forms on our Websites or as you use interactive features of the Websites, including, participation in surveys, contests, promotions, sweepstakes, requesting customer support, or communicating with us.
58 Attendee Information: Attendee Information:
59 We ask for and collect personal information such as your name, address, phone number and email address when you register for or attend a sponsored event or other events at which any member of the Zendesk Group participates. We ask for and collect personal information such as your name, address, phone number and email address when you register for or attend a sponsored event or other events at which any member of the Zendesk Group participates.
60 4. Information That We Collect From You on our Websites 4. Information That We Collect From You on our Websites
61 Cookies and Other Tracking Technologies: Cookies and Other Tracking Technologies:
62 We and our authorized partners use cookies and other information gathering technologies for a variety of purposes. These technologies may provide us with personal information, information about devices and networks you utilize to access our Websites, and other information regarding your interactions with our Websites. For detailed information about the use of cookies in the Websites, please read and review our Cookie Policy found here . We and our authorized partners use cookies and other information gathering technologies for a variety of purposes. These technologies may provide us with personal information, information about devices and networks you utilize to access our Websites, and other information regarding your interactions with our Websites. For detailed information about the use of cookies in the Websites, please read and review our Cookie Policy found here .
63 We partner with third parties to either display advertising on the Websites or to manage our advertising on other sites. Our third party partners may use technologies such as cookies to gather information about your activities on our Websites and other sites in order to suggest advertisements based upon your browsing activities and interests. If you wish to not have this information used for the purpose of serving you interest-based ads, you may opt-out by clicking here (or if located in the European Union click here ). Please note this does not opt you out of being served ads and you will continue to receive generic ads. We partner with third parties to either display advertising on the Websites or to manage our advertising on other sites. Our third party partners may use technologies such as cookies to gather information about your activities on our Websites and other sites in order to suggest advertisements based upon your browsing activities and interests. If you wish to not have this information used for the purpose of serving you interest-based ads, you may opt-out by clicking here (or if located in the European Union click here ). Please note this does not opt you out of being served ads and you will continue to receive generic ads.
64 Web beacons, tags and scripts may be used on our Websites or in email or other electronic communications we send to you. These assist us in delivering cookies, counting visits to our Websites, understanding usage and campaign effectiveness and determining whether an email has been opened and acted upon. We may receive reports based on the use of these technologies by our third-party service providers on an individual and aggregated basis. Web beacons, tags and scripts may be used on our Websites or in email or other electronic communications we send to you. These assist us in delivering cookies, counting visits to our Websites, understanding usage and campaign effectiveness and determining whether an email has been opened and acted upon. We may receive reports based on the use of these technologies by our third-party service providers on an individual and aggregated basis.
65 We use Local Storage Objects (“LSOs”) such as HTML5 to store content information and preferences. Various browsers may offer their own management tools for removing HTML5 LSOs. Third parties with whom we partner to provide certain features on our Websites or to display advertising based upon your Web browsing activity use LSOs such as HTML5 and Flash to collect and store information. For further information on how to manage Flash LSOs please click here . We use Local Storage Objects (“LSOs”) such as HTML5 to store content information and preferences. Various browsers may offer their own management tools for removing HTML5 LSOs. Third parties with whom we partner to provide certain features on our Websites or to display advertising based upon your Web browsing activity use LSOs such as HTML5 and Flash to collect and store information. For further information on how to manage Flash LSOs please click here .
66 Logs: Logs:
67 As is true with most websites and services delivered over the Internet, we gather certain information and store it in log files when you interact with our Websites and Services. This information includes internet protocol (IP) addresses as well as browser type, internet service provider, URLs of referring/exit pages, operating system, date/time stamp, information you search for, locale and language preferences, identification numbers associated with your devices, your mobile carrier, and system configuration information. Occasionally, we connect personal information to information gathered in our log files as necessary to improve our Websites and Services. In such a case, we would treat the combined information in accordance with this Policy. As is true with most websites and services delivered over the Internet, we gather certain information and store it in log files when you interact with our Websites and Services. This information includes internet protocol (IP) addresses as well as browser type, internet service provider, URLs of referring/exit pages, operating system, date/time stamp, information you search for, locale and language preferences, identification numbers associated with your devices, your mobile carrier, and system configuration information. Occasionally, we connect personal information to information gathered in our log files as necessary to improve our Websites and Services. In such a case, we would treat the combined information in accordance with this Policy.
68 Analytics: Analytics:
69 We collect analytics information when you use the Websites to help us improve them. We may also share anonymous data about your actions on our Websites with third-party service providers of analytics services. We collect analytics information when you use the Websites to help us improve them. We may also share anonymous data about your actions on our Websites with third-party service providers of analytics services.
70 5. Information Collected From Other Sources 5. Information Collected From Other Sources
71 Social Media Widgets: Social Media Widgets:
72 The Websites include social media features, such as the Facebook Like button, and widgets, such as the Share This button or interactive mini-programs that run on our Websites. These features may collect your Internet protocol address, which page you are visiting on the Websites, and may set a cookie to enable the feature to function properly. Social media features and widgets are either hosted by a third party or hosted directly on the Websites. Your interactions with these features are governed by the privacy statement of the companies that provide them. The Websites include social media features, such as the Facebook Like button, and widgets, such as the Share This button or interactive mini-programs that run on our Websites. These features may collect your Internet protocol address, which page you are visiting on the Websites, and may set a cookie to enable the feature to function properly. Social media features and widgets are either hosted by a third party or hosted directly on the Websites. Your interactions with these features are governed by the privacy statement of the companies that provide them.
73 Information From Third Party Services: Information From Third Party Services:
74 We may also obtain other information, including personal information, from third parties and combine that with information we collect through our Websites. For example, we may have access to certain information from a third party social media or authentication service if you log into our Services through such a service or otherwise provide us with access to information from the service. Any access that we may have to such information from a third party social media or authentication service is in accordance with the authorization procedures determined by that service. By authorizing us to connect with a third party service, you authorize us to access and store your name, email address(es), current city, profile picture URL, and other personal information that the third party service makes available to us, and to use and disclose it in accordance with this Policy. You should check your privacy settings on these third party services to understand and change the information sent to us through these services. For example, you can log in to the Services using sign-in services such as Facebook Connect or an Open ID provider, as further described below. We may also obtain other information, including personal information, from third parties and combine that with information we collect through our Websites. For example, we may have access to certain information from a third party social media or authentication service if you log into our Services through such a service or otherwise provide us with access to information from the service. Any access that we may have to such information from a third party social media or authentication service is in accordance with the authorization procedures determined by that service. By authorizing us to connect with a third party service, you authorize us to access and store your name, email address(es), current city, profile picture URL, and other personal information that the third party service makes available to us, and to use and disclose it in accordance with this Policy. You should check your privacy settings on these third party services to understand and change the information sent to us through these services. For example, you can log in to the Services using sign-in services such as Facebook Connect or an Open ID provider, as further described below.
75 Single Sign-On: Single Sign-On:
76 You can log into certain Services using sign-in services such as Facebook Connect or an Open ID provider. These services will authenticate your identity, provide you with the option to share certain personal information (such as your name and email address) with us, and pre-populate our sign up form. Services like Facebook Connect give you the option to post information about your activities in the Services to your profile page to share with others within your network. You can log into certain Services using sign-in services such as Facebook Connect or an Open ID provider. These services will authenticate your identity, provide you with the option to share certain personal information (such as your name and email address) with us, and pre-populate our sign up form. Services like Facebook Connect give you the option to post information about your activities in the Services to your profile page to share with others within your network.
77 6. How We Use Information That We Collect 6. How We Use Information That We Collect
78 General Uses: General Uses:
79 We use the information we collect about you (including personal information, to the extent applicable) for a variety of purposes, including to (a) provide, operate, maintain, improve, and promote the Services; (b) enable you to access and use the Services; (c) process and complete transactions, and send you related information, including purchase confirmations and invoices; (d) send transactional messages, including responses to your comments, questions, and requests; provide customer service and support; and send you technical notices, updates, security alerts, and support and administrative messages; (e) send promotional communications, such as providing you with information about products and services, features, surveys, newsletters, offers, promotions, contests, and events; and provide other news or information about us and our partners. You can opt-out of receiving marketing communications from us by contacting us at privacy@zendesk.com or following the unsubscribe instructions included in our marketing communications; (f) process and deliver contest or sweepstakes entries and rewards; (g) monitor and analyze trends, usage, and activities in connection with the Websites and Services and for marketing or advertising purposes; (h) investigate and prevent fraudulent transactions, unauthorized access to the Services, and other illegal activities; (i) personalize the Websites and Services, including by providing features or advertisements that match your interests and preferences; and (j) for other purposes for which we obtain your consent. We use the information we collect about you (including personal information, to the extent applicable) for a variety of purposes, including to (a) provide, operate, maintain, improve, and promote the Services; (b) enable you to access and use the Services; (c) process and complete transactions, and send you related information, including purchase confirmations and invoices; (d) send transactional messages, including responses to your comments, questions, and requests; provide customer service and support; and send you technical notices, updates, security alerts, and support and administrative messages; (e) send promotional communications, such as providing you with information about products and services, features, surveys, newsletters, offers, promotions, contests, and events; and provide other news or information about us and our partners. You can opt-out of receiving marketing communications from us by contacting us at privacy@zendesk.com or following the unsubscribe instructions included in our marketing communications; (f) process and deliver contest or sweepstakes entries and rewards; (g) monitor and analyze trends, usage, and activities in connection with the Websites and Services and for marketing or advertising purposes; (h) investigate and prevent fraudulent transactions, unauthorized access to the Services, and other illegal activities; (i) personalize the Websites and Services, including by providing features or advertisements that match your interests and preferences; and (j) for other purposes for which we obtain your consent.
80 7. Sharing Of Information Collected 7. Sharing Of Information Collected
81 Third-Party Service Providers: Third-Party Service Providers:
82 We share information, including personal information, with our third-party service providers that we use to provide hosting for and maintenance of our Websites, application development, backup, storage, payment processing, analytics and other services for us. These third-party service providers may have access to or process your personal information for the purpose of providing these services for us. We do not permit our third-party service providers to use the personal information that we share with them for their marketing purposes or for any other purpose than in connection with the services they provide to us. We share information, including personal information, with our third-party service providers that we use to provide hosting for and maintenance of our Websites, application development, backup, storage, payment processing, analytics and other services for us. These third-party service providers may have access to or process your personal information for the purpose of providing these services for us. We do not permit our third-party service providers to use the personal information that we share with them for their marketing purposes or for any other purpose than in connection with the services they provide to us.
83 Compliance with Laws and Law Enforcement Requests; Protection of Our Rights: Compliance with Laws and Law Enforcement Requests; Protection of Our Rights:
84 In certain situations, we may be required to disclose personal information in response to lawful requests by public authorities, including to meet national security or law enforcement requirements. We may disclose personal information to respond to subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims. We may also share such information if we believe it is necessary in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of our Service Agreement, or as otherwise required by law. In certain situations, we may be required to disclose personal information in response to lawful requests by public authorities, including to meet national security or law enforcement requirements. We may disclose personal information to respond to subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims. We may also share such information if we believe it is necessary in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of our Service Agreement, or as otherwise required by law.
85 Testimonials: Testimonials:
86 From time to time, we may post testimonials on the Websites that may contain personal information. We obtain your consent to post your name along with your testimonial. If you wish to update or delete your testimonial, you can contact us at privacy@zendesk.com . From time to time, we may post testimonials on the Websites that may contain personal information. We obtain your consent to post your name along with your testimonial. If you wish to update or delete your testimonial, you can contact us at privacy@zendesk.com .
87 Referrals: Referrals:
88 If you choose to use our referral service to tell a friend about our products and services, we will ask you for your friend’s name and email address. We will automatically send your friend an email inviting him or her to visit the Websites and will store this information for the purpose of sending this initial email, tracking the success of our referral program and other marketing activities. Your referral may contact us at privacy@zendesk.com to request that we remove his/her information from our database. If you choose to use our referral service to tell a friend about our products and services, we will ask you for your friend’s name and email address. We will automatically send your friend an email inviting him or her to visit the Websites and will store this information for the purpose of sending this initial email, tracking the success of our referral program and other marketing activities. Your referral may contact us at privacy@zendesk.com to request that we remove his/her information from our database.
89 Community Forums: Community Forums:
90 The Websites may offer publicly accessible blogs, community forums, comments sections, discussion forums, or other interactive features (“Interactive Areas”). You should be aware that any information that you post in an Interactive Area might be read, collected, and used by others who access it. To request removal of your personal information from an Interactive Area, contact us at privacy@zendesk.com . In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. The Websites may offer publicly accessible blogs, community forums, comments sections, discussion forums, or other interactive features (“Interactive Areas”). You should be aware that any information that you post in an Interactive Area might be read, collected, and used by others who access it. To request removal of your personal information from an Interactive Area, contact us at privacy@zendesk.com . In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why.
91 Zendesk Group Sharing: Zendesk Group Sharing:
92 We may share information, including personal information, with any member of the Zendesk Group. We may share information, including personal information, with any member of the Zendesk Group.
93 With Your Consent: With Your Consent:
94 We may also share personal information with third parties when we have your consent to do so. We may also share personal information with third parties when we have your consent to do so.
95 8. International Transfer Of Information Collected 8. International Transfer Of Information Collected
96 We primarily store personal information about Website Visitors and Subscribers within the European Economic Area (the “EEA”), the United States and in other countries and territories. To facilitate our global operations, we may transfer and access such personal information from around the world, including from other countries in which the Zendesk Group has operations. We primarily store personal information about Website Visitors and Subscribers within the European Economic Area (the “EEA”), the United States and in other countries and territories. To facilitate our global operations, we may transfer and access such personal information from around the world, including from other countries in which the Zendesk Group has operations.
97 If you are visiting our Websites from the EEA or other regions with laws governing data collection and use, please note that you are agreeing to the transfer of your personal information to the United States and other jurisdictions in which we operate. By providing your personal information, you consent to any transfer and processing in accordance with this Policy. If you are visiting our Websites from the EEA or other regions with laws governing data collection and use, please note that you are agreeing to the transfer of your personal information to the United States and other jurisdictions in which we operate. By providing your personal information, you consent to any transfer and processing in accordance with this Policy.
98 9. Communications Preferences 9. Communications Preferences
99 We offer those who provide personal contact information a means to choose how we use the information provided. You may manage your receipt of marketing and non- transactional communications by clicking on the “unsubscribe” link located on the bottom of our marketing emails or you may send a request to privacy@zendesk.com . We offer those who provide personal contact information a means to choose how we use the information provided. You may manage your receipt of marketing and non- transactional communications by clicking on the “unsubscribe” link located on the bottom of our marketing emails or you may send a request to privacy@zendesk.com .
100 10. Correcting, Updating and Removing Your Information 10. Correcting, Updating and Removing Your Information
101 Upon request we will provide you with information about whether we hold, or process on behalf of a third party, any of your personal information. To request this information please contact us at privacy@zendesk.com . Subscribers to our Services may update or change their Account Information by editing their profile or organization record or by contacting support@zendesk.com for more detailed instructions. To make a request to have personal information maintained by us returned to you or removed, please email support@zendesk.com . Requests to access, change, or remove your information will be handled within 30 days. Upon request we will provide you with information about whether we hold, or process on behalf of a third party, any of your personal information. To request this information please contact us at privacy@zendesk.com . Subscribers to our Services may update or change their Account Information by editing their profile or organization record or by contacting support@zendesk.com for more detailed instructions. To make a request to have personal information maintained by us returned to you or removed, please email support@zendesk.com . Requests to access, change, or remove your information will be handled within 30 days.
102 An individual who seeks access to, or who seeks to correct, amend, or delete inaccuracies in personal information stored or processed by us on behalf of a Subscriber should direct his/her query to the Subscriber (the data controller). Upon receipt of a request from one of our Subscribers for us to remove the data, we will respond to their request within thirty (30) days. We will retain personal information that we store and process on behalf of our Subscribers for as long as needed to provide the Services to our Subscribers. We will retain and use this personal information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. An individual who seeks access to, or who seeks to correct, amend, or delete inaccuracies in personal information stored or processed by us on behalf of a Subscriber should direct his/her query to the Subscriber (the data controller). Upon receipt of a request from one of our Subscribers for us to remove the data, we will respond to their request within thirty (30) days. We will retain personal information that we store and process on behalf of our Subscribers for as long as needed to provide the Services to our Subscribers. We will retain and use this personal information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
103 The security of your personal information is important to us. We follow generally accepted standards to protect the personal information submitted to us, both during transmission and once it is received. If you have any questions about the security of your personal information, you can contact us at privacy@zendesk.com . The security of your personal information is important to us. We follow generally accepted standards to protect the personal information submitted to us, both during transmission and once it is received. If you have any questions about the security of your personal information, you can contact us at privacy@zendesk.com .
104 If you are a Subscriber or otherwise provide us with personal information in connection with your use of our Websites or Services, we will delete this information upon your request, provided that, notwithstanding such request, this information may be retained for as long as you maintain an account for our Services, or as needed to provide you with our Services, comply with our legal obligations, resolve disputes and enforce our agreements. If you are a Subscriber or otherwise provide us with personal information in connection with your use of our Websites or Services, we will delete this information upon your request, provided that, notwithstanding such request, this information may be retained for as long as you maintain an account for our Services, or as needed to provide you with our Services, comply with our legal obligations, resolve disputes and enforce our agreements.
105 11. Children’s Personal Information 11. Children’s Personal Information
106 We do not knowingly collect any personal information from children under the age of 13. If you are under the age of 13, please do not submit any personal information through our Websites or Services. We encourage parents and legal guardians to monitor their children’s Internet usage and to help enforce this Policy by instructing their children never to provide personal information through the Websites or Services without their permission. If you have reason to believe that a child under the age of 13 has provided personal information to us through the Websites or Services, please contact us at privacy@zendesk.com , and we will use commercially reasonable efforts to delete that information. We do not knowingly collect any personal information from children under the age of 13. If you are under the age of 13, please do not submit any personal information through our Websites or Services. We encourage parents and legal guardians to monitor their children’s Internet usage and to help enforce this Policy by instructing their children never to provide personal information through the Websites or Services without their permission. If you have reason to believe that a child under the age of 13 has provided personal information to us through the Websites or Services, please contact us at privacy@zendesk.com , and we will use commercially reasonable efforts to delete that information.
107 12. Business Transactions 12. Business Transactions
108 We may assign or transfer this Policy, as well as your account and related information and data, including any personal information, to any person or entity that acquires all or substantially all of our business, stock or assets, or with whom we merge. We may assign or transfer this Policy, as well as your account and related information and data, including any personal information, to any person or entity that acquires all or substantially all of our business, stock or assets, or with whom we merge.
109 13. Safe Harbor and Privacy Shield Frameworks: 13. Safe Harbor and Privacy Shield Frameworks:
110 Zendesk abides by and has certified adherence to the principles of the EU-U.S. Privacy Shield and the U.S.-Swiss Safe Harbor as set forth by the U.S. Department of Commerce. For more information on the EU-U.S. Privacy Shield, and to view the scope of Zendesk’s certification, please visit https://www.privacyshield.gov/ . For more information on the U.S.-Swiss Safe Harbor, including the Safe Harbor Principles, and to view the scope of Zendesk’s certification, please visit http://2016.export.gov/safeharbor/swiss/ . If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact our U.S.-based third party dispute resolution provider (free of charge) at https://feedback-form.truste.com/watchdog/request . Zendesk abides by and has certified adherence to the principles of the EU-U.S. Privacy Shield and the U.S.-Swiss Safe Harbor as set forth by the U.S. Department of Commerce. For more information on the EU-U.S. Privacy Shield, and to view the scope of Zendesk’s certification, please visit https://www.privacyshield.gov/ . For more information on the U.S.-Swiss Safe Harbor, including the Safe Harbor Principles, and to view the scope of Zendesk’s certification, please visit http://2016.export.gov/safeharbor/swiss/ . If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact our U.S.-based third party dispute resolution provider (free of charge) at https://feedback-form.truste.com/watchdog/request .
111 For residual Privacy Shield disputes that cannot be resolved by the methods above, you may be able to invoke a binding arbitration process under certain conditions. To find out more about the Privacy Shield’s binding arbitration scheme, please see: https://www.privacyshield.gov/article?id=ANNEX-I-introduction For residual Privacy Shield disputes that cannot be resolved by the methods above, you may be able to invoke a binding arbitration process under certain conditions. To find out more about the Privacy Shield’s binding arbitration scheme, please see: https://www.privacyshield.gov/article?id=ANNEX-I-introduction
112 The Federal Trade Commission has investigation and enforcement authority over our compliance with the Privacy Shield. The Federal Trade Commission has investigation and enforcement authority over our compliance with the Privacy Shield.
113 If we have received your personal information under the Privacy Shield and subsequently transfer it to a third party service provider for processing, we will remain responsible if they process your personal information in a manner inconsistent with the Privacy Shield Principles, unless we prove that we are not responsible for the event giving rise to the damage. If we have received your personal information under the Privacy Shield and subsequently transfer it to a third party service provider for processing, we will remain responsible if they process your personal information in a manner inconsistent with the Privacy Shield Principles, unless we prove that we are not responsible for the event giving rise to the damage.
114 14. Supplemental Terms and Conditions for Certain Regions 14. Supplemental Terms and Conditions for Certain Regions
115 Japan: Japan:
116 If you are a Subscriber to our Services, you agree that you are responsible for notifying your customers using our Services about how the Zendesk Group may use your customers’ personal information as described in this Policy and for obtaining prior consent from your customers to disclose their personal information to us. If you are a Subscriber to our Services, you agree that you are responsible for notifying your customers using our Services about how the Zendesk Group may use your customers’ personal information as described in this Policy and for obtaining prior consent from your customers to disclose their personal information to us.
117 Brazil: Brazil:
118 Personal information collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in accordance with Brazilian Law No. 12,965/2014. Those individuals who use or access our Website or Services expressly consent to the collection, use, storage and processing of their personal information by us for the purposes described in this Policy. Personal information collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in accordance with Brazilian Law No. 12,965/2014. Those individuals who use or access our Website or Services expressly consent to the collection, use, storage and processing of their personal information by us for the purposes described in this Policy.
119 Australia: Australia:
120 Personal information collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the Australian Privacy Act 1988 (Commonwealth) and the Australia Privacy Principles as we further detail here . Personal information collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the Australian Privacy Act 1988 (Commonwealth) and the Australia Privacy Principles as we further detail here .
121 If you are dissatisfied with our handling of a complaint or do not agree with the resolution proposed by us, you may make a complaint to the Office of the Australian Information Commissioner (“OAIC”) by contacting the OAIC using the methods listed on their website at http://www.oaic.gov.au . Alternatively, you may request that we pass on the details of your complaint to the OAIC directly. If you are dissatisfied with our handling of a complaint or do not agree with the resolution proposed by us, you may make a complaint to the Office of the Australian Information Commissioner (“OAIC”) by contacting the OAIC using the methods listed on their website at http://www.oaic.gov.au . Alternatively, you may request that we pass on the details of your complaint to the OAIC directly.
122 New Zealand: New Zealand:
123 Personal information collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with New Zealand’s Privacy Act 1993 and its 12 Information Privacy Principles (“NZ IPPs”) as we further detail here . Personal information collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with New Zealand’s Privacy Act 1993 and its 12 Information Privacy Principles (“NZ IPPs”) as we further detail here .
124 Singapore: Singapore:
125 Personal information collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the Zendesk Group’s obligations under the Personal Data Protection Act 2012 of Singapore (“PDPA”) as we further detail here . Personal information collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the Zendesk Group’s obligations under the Personal Data Protection Act 2012 of Singapore (“PDPA”) as we further detail here .
126 Canada: Canada:
127 Personal information (as the term is defined in the Personal Information Protection and Electronic Documents Act of Canada (“PIPEDA”)) will be collected, stored, used and/or processed by the Zendesk Group in compliance with the Zendesk Group’s obligations under PIPEDA. Personal information (as the term is defined in the Personal Information Protection and Electronic Documents Act of Canada (“PIPEDA”)) will be collected, stored, used and/or processed by the Zendesk Group in compliance with the Zendesk Group’s obligations under PIPEDA.
128 15. Changes To This Policy 15. Changes To This Policy
129 If there are any material changes to this Policy, you will be notified by our posting of a prominent notice on the Websites prior to the change becoming effective. We encourage you to periodically review this page for the latest information on our privacy practices. Your continued use of the Websites or the Services constitutes your agreement to be bound by such changes to this Policy. Your only remedy, if you do not accept the terms of this Policy, is to discontinue use of the Websites and the Services. If there are any material changes to this Policy, you will be notified by our posting of a prominent notice on the Websites prior to the change becoming effective. We encourage you to periodically review this page for the latest information on our privacy practices. Your continued use of the Websites or the Services constitutes your agreement to be bound by such changes to this Policy. Your only remedy, if you do not accept the terms of this Policy, is to discontinue use of the Websites and the Services.
130 16. Contact Us 16. Contact Us
131 If you have questions regarding this Policy or about the Zendesk Group’s privacy practices, please contact us by email at privacy@zendesk.com , or at: If you have questions regarding this Policy or about the Zendesk Group’s privacy practices, please contact us by email at privacy@zendesk.com , or at:
132 Zendesk, Inc. Zendesk, Inc.
133 Attn: Privacy Officer Attn: Privacy Officer
134 1019 Market Street 1019 Market Street
135 San Francisco, CA 94103, United States San Francisco, CA 94103, United States
136 17. English Version Controls 17. English Version Controls
137 Non-English translations of this Policy are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls. Non-English translations of this Policy are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls.
138 Cookie Policy Cookie Policy
139 Effective as of November 1, 2016, Zendesk, Inc., (“Zendesk”) and its subsidiaries, (collectively, the “Zendesk Group” or “we” or “us” or “our”) have updated our Cookie Policy (“Policy”). For a prior version of our Cookie Policy, click here . Effective as of November 1, 2016, Zendesk, Inc., (“Zendesk”) and its subsidiaries, (collectively, the “Zendesk Group” or “we” or “us” or “our”) have updated our Cookie Policy (“Policy”). For a prior version of our Cookie Policy, click here .
140 1. Intro 1. Intro
141 This Cookie Policy (“Policy”) explains that we believe in being open and clear about how we use your information. In the spirit of transparency, this Policy provides detailed information about how and when we use cookies on our Websites. For the purposes of this Policy, the term, “Websites”, shall refer collectively to www.zendesk.com as well as the other websites that the Zendesk Group operates and that link to this Policy. This Cookie Policy (“Policy”) explains that we believe in being open and clear about how we use your information. In the spirit of transparency, this Policy provides detailed information about how and when we use cookies on our Websites. For the purposes of this Policy, the term, “Websites”, shall refer collectively to www.zendesk.com as well as the other websites that the Zendesk Group operates and that link to this Policy.
142 2. Does Zendesk use Cookies? 2. Does Zendesk use Cookies?
143 Yes. The Zendesk Group and our marketing partners, affiliates, and analytics or service providers use cookies and other technologies to ensure everyone who uses the Websites has the best possible experience. Yes. The Zendesk Group and our marketing partners, affiliates, and analytics or service providers use cookies and other technologies to ensure everyone who uses the Websites has the best possible experience.
144 3. What is a Cookie? 3. What is a Cookie?
145 A cookie is a small text file that is placed on your hard drive by a web page server. Cookies contain information that can later be read by a web server in the domain that issued the cookie to you. Some of the cookies will only be used if you use certain features or select certain preferences, and some cookies will always be used. You can find out more about each cookie by viewing our current cookie list here . We update this list quarterly, so there may be additional cookies that are not yet listed. Web beacons, tags and scripts may be used in the Websites or in emails to help us to deliver cookies, count visits, understand usage and campaign effectiveness and determine whether an email has been opened and acted upon. We may receive reports based on the use of these technologies by our service/analytics providers on an individual and aggregated basis. A cookie is a small text file that is placed on your hard drive by a web page server. Cookies contain information that can later be read by a web server in the domain that issued the cookie to you. Some of the cookies will only be used if you use certain features or select certain preferences, and some cookies will always be used. You can find out more about each cookie by viewing our current cookie list here . We update this list quarterly, so there may be additional cookies that are not yet listed. Web beacons, tags and scripts may be used in the Websites or in emails to help us to deliver cookies, count visits, understand usage and campaign effectiveness and determine whether an email has been opened and acted upon. We may receive reports based on the use of these technologies by our service/analytics providers on an individual and aggregated basis.
146 4. Why does Zendesk use Cookies? 4. Why does Zendesk use Cookies?
147 When you visit the Websites, we may place a number of cookies in your browser. For example, we use cookies on the Websites to understand visitor and user preferences, improve their experience, and track and analyze usage, navigational and other statistical information. You can control the use of cookies at the individual browser level. If you disable cookies, you may still visit the Websites, but your ability to use some features or areas of the Websites may be limited. When you visit the Websites, we may place a number of cookies in your browser. For example, we use cookies on the Websites to understand visitor and user preferences, improve their experience, and track and analyze usage, navigational and other statistical information. You can control the use of cookies at the individual browser level. If you disable cookies, you may still visit the Websites, but your ability to use some features or areas of the Websites may be limited.
148 How to disable Cookies How to disable Cookies
149 You can generally accept or decline the use of cookies through a functionality built into your web browser. To learn more about how to control cookie settings through your browser: You can generally accept or decline the use of cookies through a functionality built into your web browser. To learn more about how to control cookie settings through your browser:
150 Click here to learn more about the “Private Browsing” setting and managing cookie settings in Firefox; Click here to learn more about the “Private Browsing” setting and managing cookie settings in Firefox;
151 Click here to learn more about “Incognito” and managing cookie settings in Chrome; Click here to learn more about “Incognito” and managing cookie settings in Chrome;
152 Click here to learn more about “InPrivate” and managing cookie settings in Internet Explorer; or Click here to learn more about “InPrivate” and managing cookie settings in Internet Explorer; or
153 Click here to learn more about “Private Browsing” and managing cookie settings in Safari. Click here to learn more about “Private Browsing” and managing cookie settings in Safari.
154 If you want to learn more about cookies, or how to control, disable or delete them, please visit http://www.aboutcookies.org for detailed guidance. In addition, certain third party advertising networks, including Google, permit users to opt out of or customize preferences associated with your internet browsing. To learn more about this feature from Google, click here . If you want to learn more about cookies, or how to control, disable or delete them, please visit http://www.aboutcookies.org for detailed guidance. In addition, certain third party advertising networks, including Google, permit users to opt out of or customize preferences associated with your internet browsing. To learn more about this feature from Google, click here .
155 Many jurisdictions require or recommend that website operators inform users/visitors as to the nature of cookies they utilize and, in certain circumstances, obtain the consent of their users to the placement of certain cookies. Many jurisdictions require or recommend that website operators inform users/visitors as to the nature of cookies they utilize and, in certain circumstances, obtain the consent of their users to the placement of certain cookies.
156 The Websites include third party social media features, such as the Facebook Like button, and third party widgets, such as the ‘Share This’ button or interactive mini-programs that run on the Websites. These features may collect your IP address, which page you are visiting on the Websites, and set a cookie to enable the feature to function properly. Your interaction with these features is governed by the privacy policy of the third party company providing it. The Websites include third party social media features, such as the Facebook Like button, and third party widgets, such as the ‘Share This’ button or interactive mini-programs that run on the Websites. These features may collect your IP address, which page you are visiting on the Websites, and set a cookie to enable the feature to function properly. Your interaction with these features is governed by the privacy policy of the third party company providing it.
157 We may use any of the following categories of cookies on the Websites as detailed below. We may use any of the following categories of cookies on the Websites as detailed below.
158 Each cookie falls within one of the four following categories: Each cookie falls within one of the four following categories:
159 Category Category
160 Description Description
161 1. Essential Cookies 1. Essential Cookies
162 Essential cookies are sometimes called “strictly necessary” as without them we cannot provide many services that you need on the Websites. For example, essential cookies help remember your preferences as you move around the Websites. Essential cookies are sometimes called “strictly necessary” as without them we cannot provide many services that you need on the Websites. For example, essential cookies help remember your preferences as you move around the Websites.
163 2. Analytics Cookies 2. Analytics Cookies
164 These cookies track information about visits to the Websites so that we can make improvements and report our performance. For example: analyze visitor and user behavior so as to provide more relevant content or suggest certain activities. They collect information about how visitors use the Websites, which site the user came from, the number of each user’s visits and how long a user stays on the Websites. We might also use analytics cookies to test new ads, pages, or features to see how users react to them. These cookies track information about visits to the Websites so that we can make improvements and report our performance. For example: analyze visitor and user behavior so as to provide more relevant content or suggest certain activities. They collect information about how visitors use the Websites, which site the user came from, the number of each user’s visits and how long a user stays on the Websites. We might also use analytics cookies to test new ads, pages, or features to see how users react to them.
165 3. Functionality or Preference Cookies 3. Functionality or Preference Cookies
166 During your visit to the Websites, cookies are used to remember information you have entered or choices you make (such as your username, language or your region) on the Websites. They also store your preferences when personalizing the Websites to optimize your use of Zendesk, for example, your preferred language. These preferences are remembered, through the use of the persistent cookies, and the next time you visit the Websites you will not have to set them again. During your visit to the Websites, cookies are used to remember information you have entered or choices you make (such as your username, language or your region) on the Websites. They also store your preferences when personalizing the Websites to optimize your use of Zendesk, for example, your preferred language. These preferences are remembered, through the use of the persistent cookies, and the next time you visit the Websites you will not have to set them again.
167 4. Targeting or Advertising Cookies 4. Targeting or Advertising Cookies
168 These cookies are placed by third party advertising platforms or networks in order to, deliver ads and track ad performance, enable advertising networks to deliver ads that may be relevant to you based upon your activities (this is sometimes called “behavioral” or “targeted” advertising) on the Websites. They may subsequently use information about your visit to target you with advertising that you may be interested in, on the Websites and other websites. For example, these cookies remember which browsers have visited the Websites. These cookies are placed by third party advertising platforms or networks in order to, deliver ads and track ad performance, enable advertising networks to deliver ads that may be relevant to you based upon your activities (this is sometimes called “behavioral” or “targeted” advertising) on the Websites. They may subsequently use information about your visit to target you with advertising that you may be interested in, on the Websites and other websites. For example, these cookies remember which browsers have visited the Websites.
169 List of Cookies used on the Websites: List of Cookies used on the Websites:
170 Website Name(s) Website Name(s)
171 Cookie Name Cookie Name
172 Cookie Purpose Cookie Purpose
173 Cookie Duration Cookie Duration
174 Category Category
175 www.zendesk.com & www.zopim.com www.zendesk.com & www.zopim.com
176 Optimizely Optimizely
177 Tracking for A/B testing Tracking for A/B testing
178 10 years 10 years
179 Analytics Analytics
180 www.zendesk.com www.zendesk.com
181 Heap Heap
182 Event tracking to monitor behavior Event tracking to monitor behavior
183 2 years 2 years
184 Analytics Analytics
185 www.zendesk.com www.zendesk.com
186 Mixpanel Mixpanel
187 Event tracking to monitor behavior Event tracking to monitor behavior
188 1 year 1 year
189 Analytics Analytics
190 www.zendesk.com www.zendesk.com
191 Gauge Gauge
192 High level behavior tracking High level behavior tracking
193 2 years 2 years
194 Functionality/ Preference Functionality/ Preference
195 All Websites All Websites
196 Google Analytics Google Analytics
197 This web analytics cookie collects information about how visitors use the Websites, which website the user came from, the number of each user’s visits and how long a user stays on the Websites This web analytics cookie collects information about how visitors use the Websites, which website the user came from, the number of each user’s visits and how long a user stays on the Websites
198 2 years 2 years
199 Analytics Analytics
200 www.zendesk.com www.zendesk.com
201 Livefyre Livefyre
202 Visitor authentication for commenting and user reviews Visitor authentication for commenting and user reviews
203 2 years 2 years
204 Essential Essential
205 www.zendesk.com www.zendesk.com
206 Disqus Disqus
207 Visitor authentication for commenting and user reviews Visitor authentication for commenting and user reviews
208 2 years 2 years
209 Essential Essential
210 www.zendesk.com www.zendesk.com
211 Crazy Egg Crazy Egg
212 Analytics Tool that gives us heat maps and click data Analytics Tool that gives us heat maps and click data
213 5 years 5 years
214 Analytics Analytics
215 www.zendesk.com & www.zopim.com www.zendesk.com & www.zopim.com
216 Adroll Adroll
217 Advertising focused on retargeting Advertising focused on retargeting
218 10 years 10 years
219 Targeting/ Advertising Targeting/ Advertising
220 www.zendesk.com www.zendesk.com
221 Bizo Bizo
222 Allow advertising via Display, Retargeting and other channels Allow advertising via Display, Retargeting and other channels
223 5 years 5 years
224 Targeting/ Advertising Targeting/ Advertising
225 www.zendesk.com www.zendesk.com
226 Convertro Convertro
227 Multichannel analytics platform Multichannel analytics platform
228 13 years 13 years
229 Analytics Analytics
230 www.zendesk.com www.zendesk.com
231 Eloqua Eloqua
232 Marketing automation software Marketing automation software
233 1 year 1 year
234 Essential Essential
235 www.zendesk.com www.zendesk.com
236 Pardot Pardot
237 Marketing automation software Marketing automation software
238 10 years 10 years
239 Targeting/ Advertising Targeting/ Advertising
240 www.zendesk.com www.zendesk.com
241 Quantcast Quantcast
242 Advertising Advertising
243 6 months 6 months
244 Targeting/ Advertising Targeting/ Advertising
245 www.zendesk.com www.zendesk.com
246 Facebook Connect Facebook Connect
247 Interaction between services Interaction between services
248 8 hours 8 hours
249 Essential Essential
250 www.zendesk.com & www.zopim.com www.zendesk.com & www.zopim.com
251 Doubleclick Doubleclick
252 Re-targeting, optimization, reporting and attribution of online adverts Re-targeting, optimization, reporting and attribution of online adverts
253 2 years 2 years
254 Targeting/ Advertising Targeting/ Advertising
255 www.zendesk.com www.zendesk.com
256 Advertising.com Advertising.com
257 Advertising Vendor for prospecting Advertising Vendor for prospecting
258 2 years 2 years
259 Targeting/ Advertising Targeting/ Advertising
260 www.zendesk.com www.zendesk.com
261 AppNexus AppNexus
262 Advertising Vendor for prospecting Advertising Vendor for prospecting
263 1 year 1 year
264 Targeting/ Advertising Targeting/ Advertising
265 www.zendesk.com www.zendesk.com
266 Google Adwords Conversion Google Adwords Conversion
267 Advertising pixel for prospecting and retargeting Advertising pixel for prospecting and retargeting
268 540 days 540 days
269 Targeting/ Advertising Targeting/ Advertising
270 www.zendesk.com www.zendesk.com
271 LiveRamp LiveRamp
272 Tracking of anonymous user characteristics Tracking of anonymous user characteristics
273 180 days 180 days
274 Targeting/ Advertising Targeting/ Advertising
275 www.zendesk.com www.zendesk.com
276 Twitter Advertising Twitter Advertising
277 Advertising Advertising
278 1.5 years 1.5 years
279 Essential Essential
280 www.zendesk.com www.zendesk.com
281 Clearbit Clearbit
282 Stores information on user in order to not display so many forms Stores information on user in order to not display so many forms
283 Session Session
284 Functionality/ Preference Functionality/ Preference
285 www.zendesk.com and www.bimeanalytics.com www.zendesk.com and www.bimeanalytics.com
286 Google Tag Manager Google Tag Manager
287 Traffic and visitor behavior measurement Traffic and visitor behavior measurement
288 2 years 2 years
289 Analytics Analytics
290 www.zopim.com and www.bimeanalytics.com www.zopim.com and www.bimeanalytics.com
291 Cloudflare Cloudflare
292 Control over cache of assets Control over cache of assets
293 1 year 1 year
294 Essential Essential
295 www.zopim.com www.zopim.com
296 Rlcdn.com Rlcdn.com
297 Ad targeting Ad targeting
298 10 years 10 years
299 Targeting/ Advertising Targeting/ Advertising
300 www.zopim.com www.zopim.com
301 Smartadserver.com Smartadserver.com
302 Advertising Advertising
303 10 years 10 years
304 Targeting/ Advertising Targeting/ Advertising
305 www.zopim.com www.zopim.com
306 Bidswitch Bidswitch
307 Publisher/Ad Platform Publisher/Ad Platform
308 10 years 10 years
309 Targeting/ Advertising Targeting/ Advertising
310 www.zopim.com www.zopim.com
311 Pubmatic Pubmatic
312 Publisher/Ad Platform Publisher/Ad Platform
313 10 Years 10 Years
314 Targeting/ Advertising Targeting/ Advertising
315 www.zopim.com www.zopim.com
316 Delivery.swid.switchads.com Delivery.swid.switchads.com
317 Advertising Advertising
318 10 years 10 years
319 Targeting/ Advertising Targeting/ Advertising
320 www.zopim.com www.zopim.com
321 angsryr.com angsryr.com
322 Targeting/Advertising Targeting/Advertising
323 10 years 10 years
324 Targeting/ Advertising Targeting/ Advertising
325 www.zopim.com www.zopim.com
326 Adtechus.com Adtechus.com
327 Advertising Advertising
328 10 years 10 years
329 Targeting/ Advertising Targeting/ Advertising
330 www.zopim.com www.zopim.com
331 .adnxs.com .adnxs.com
332 Advertising Advertising
333 10 years 10 years
334 Targeting/ Advertising Targeting/ Advertising
335 www.zopim.com www.zopim.com
336 iLijit.com iLijit.com
337 Advertising Advertising
338 10 years 10 years
339 Targeting/ Advertising Targeting/ Advertising
340 www.zopim.com www.zopim.com
341 Hubspot Hubspot
342 Advertising Advertising
343 10 years 10 years
344 Targeting/ Advertising Targeting/ Advertising
345 www.zopim.com www.zopim.com
346 Wistia Wistia
347 Video Streaming Video Streaming
348 10 years 10 years
349 Essential Essential
350 www.bimeanalytics.com www.bimeanalytics.com
351 Google Analytics Google Analytics
352 Session Google Analytics Session Google Analytics
353 10 minutes 10 minutes
354 Analytics Analytics
355 www.bimeanalytics.com www.bimeanalytics.com
356 Heap Analytics Heap Analytics
357 Event tracking to monitor behavior Event tracking to monitor behavior
358 2 years 2 years
359 Analytics Analytics
360 www.bimeanalytics.com www.bimeanalytics.com
361 Heap Analytics Heap Analytics
362 Session Heap Analytics Session Heap Analytics
363 30 min 30 min
364 Analytics Analytics
365 www.bimeanalytics.com www.bimeanalytics.com
366 Vimeo Vimeo
367 Vimeo video player Vimeo video player
368 2 years 2 years
369 Functionality/ Preference Functionality/ Preference
370 www.bimeanalytics.com www.bimeanalytics.com
371 Google Google
372 Google Account – SSO Google Account – SSO
373 6 months 6 months
374 Functionality/ Preference Functionality/ Preference
375 www.bimeanalytics.com www.bimeanalytics.com
376 Capterra Capterra
377 Conversion tracking Conversion tracking
378 30 min 30 min
379 Targeting/ Advertising Targeting/ Advertising
380 www.bimeanalytics.com www.bimeanalytics.com
381 Website Language Website Language
382 Language settings Language settings
383 30 min 30 min
384 Functionality/ Preference Functionality/ Preference
385 www.bimeanalytics.com www.bimeanalytics.com
386 popupHide popupHide
387 Determines if a user has accepted or rejected the demo request popup that appears after a certain time on the website Determines if a user has accepted or rejected the demo request popup that appears after a certain time on the website
388 Session Session
389 Functionality/ Preference Functionality/ Preference
390 6. Cookies Subject to Change 6. Cookies Subject to Change
391 The content of this Policy is for your general information and use only. These cookies are subject to change without notice. You acknowledge that this information may contain inaccuracies or errors and is subject to change and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law. The content of this Policy is for your general information and use only. These cookies are subject to change without notice. You acknowledge that this information may contain inaccuracies or errors and is subject to change and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
392 7. Cookies Used in Our Services 7. Cookies Used in Our Services
393 In addition to using cookies on our Websites as described above, we also use cookies and other tracking technologies in connection with your access to and use of the products and services which we market for subscription on our Websites (our “Services”). How and why we use cookies and other tracking technologies in our Services is further explained in our Master Subscription Agreement found here . In addition to using cookies on our Websites as described above, we also use cookies and other tracking technologies in connection with your access to and use of the products and services which we market for subscription on our Websites (our “Services”). How and why we use cookies and other tracking technologies in our Services is further explained in our Master Subscription Agreement found here .
394 8. Updating This Policy 8. Updating This Policy
395 If there are any material changes to this Policy, you will be notified by the posting of a prominent notice on our Websites prior to the change becoming effective. We encourage you to periodically review this page for the latest information on the Policy. Your continued use of the Websites constitutes your agreement to be bound by such changes to this Policy. Your only remedy, if you do not accept the terms of this Policy, is to discontinue use of and access to the Websites. If there are any material changes to this Policy, you will be notified by the posting of a prominent notice on our Websites prior to the change becoming effective. We encourage you to periodically review this page for the latest information on the Policy. Your continued use of the Websites constitutes your agreement to be bound by such changes to this Policy. Your only remedy, if you do not accept the terms of this Policy, is to discontinue use of and access to the Websites.
396 Master Subscription Agreement Master Subscription Agreement
397 We have updated Our Terms of Service which we now refer to as the “Master Subscription Agreement”. If You are a new Subscriber, then this Master Subscription Agreement will be effective as of November 1, 2016. If You are an existing Subscriber, we are providing You with prior notice of these changes which will be effective as of December 1, 2016. For a prior version of Our Terms of Service, click here . We have updated Our Terms of Service which we now refer to as the “Master Subscription Agreement”. If You are a new Subscriber, then this Master Subscription Agreement will be effective as of November 1, 2016. If You are an existing Subscriber, we are providing You with prior notice of these changes which will be effective as of December 1, 2016. For a prior version of Our Terms of Service, click here .
398 THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES. THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
399 By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Zendesk that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services. By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Zendesk that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
400 Table of Contents: Table of Contents:
401 General Terms and Conditions: General Terms and Conditions:
402 1. Definitions 1. Definitions
403 2. General Conditions; Access to and Use of the Services 2. General Conditions; Access to and Use of the Services
404 3. Confidentiality; Security and Privacy 3. Confidentiality; Security and Privacy
405 4. Intellectual Property Rights 4. Intellectual Property Rights
406 5. Third Party Services 5. Third Party Services
407 6. Billing, Plan Modifications and Payments 6. Billing, Plan Modifications and Payments
408 7. Credits Policy 7. Credits Policy
409 8. Cancellation and Termination 8. Cancellation and Termination
410 9. Representations, Warranties and Disclaimers 9. Representations, Warranties and Disclaimers
411 10. Limitation of Liability 10. Limitation of Liability
412 11. Indemnification 11. Indemnification
413 12. Assignment, Entire Agreement and Amendment 12. Assignment, Entire Agreement and Amendment
414 13. Severability 13. Severability
415 14. Export Compliance and Use Restrictions 14. Export Compliance and Use Restrictions
416 15. Relationship of the Parties 15. Relationship of the Parties
417 16. Notice 16. Notice
418 17. Governing Law 17. Governing Law
419 18. Federal Government End Use Provisions 18. Federal Government End Use Provisions
420 19. Anti-Corruption 19. Anti-Corruption
421 20. Survival 20. Survival
422 Supplemental Terms and Conditions: Supplemental Terms and Conditions:
423 1. Service-Specific Terms 1. Service-Specific Terms
424 2. How We Protect Service Data 2. How We Protect Service Data
425 3. Country-Specific Terms 3. Country-Specific Terms
426 4. Consulting Services 4. Consulting Services
427 1. DEFINITIONS 1. DEFINITIONS
428 When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings: When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
429 Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services. Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
430 Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise. Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
431 Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login. Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
432 Agreement: means the Master Subscription Agreement together with any and all Supplements, Additional Terms and Order Forms. Agreement: means the Master Subscription Agreement together with any and all Supplements, Additional Terms and Order Forms.
433 API: means the application programming interfaces developed and enabled by Zendesk that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications. API: means the application programming interfaces developed and enabled by Zendesk that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
434 Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, including, without limitation, integrations and applications created or developed by Zendesk or its Affiliates and made available in the Zendesk marketplace (available at https://www.zendesk.com/apps ) which are expressly stated to be governed by this Agreement. For avoidance of doubt, none of the Services or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms shall be deemed an Associated Service. Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, including, without limitation, integrations and applications created or developed by Zendesk or its Affiliates and made available in the Zendesk marketplace (available at https://www.zendesk.com/apps ) which are expressly stated to be governed by this Agreement. For avoidance of doubt, none of the Services or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms shall be deemed an Associated Service.
435 Beta Services: means a product, service or functionality provided by Zendesk that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description. Beta Services: means a product, service or functionality provided by Zendesk that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
436 Confidential Information: means all information disclosed by You to Zendesk or by Zendesk to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Zendesk’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. Confidential Information: means all information disclosed by You to Zendesk or by Zendesk to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Zendesk’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
437 Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by Zendesk or its authorized subcontractors as indicated on an Order Form or other written document such as a statement of work “SOW”, as defined below. Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by Zendesk or its authorized subcontractors as indicated on an Order Form or other written document such as a statement of work “SOW”, as defined below.
438 Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data. Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.
439 Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Zendesk to You in the applicable Zendesk help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s). Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Zendesk to You in the applicable Zendesk help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
440 End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service. End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service.
441 Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service. Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
442 Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Other Services which may be integrated directly into Your Account by You or at Your direction. Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Other Services which may be integrated directly into Your Account by You or at Your direction.
443 Payment Agent: means Zendesk, Inc. or a payment agent designated by Zendesk. For example, if You choose to pay for a Service with a credit card or certain other payment instruments in a currency other than the U.S. Dollar, Zendesk may designate the Payment Agent to be Zendesk International Limited, a corporation organized under the laws of Ireland, Registration No. 519184. Payment Agent: means Zendesk, Inc. or a payment agent designated by Zendesk. For example, if You choose to pay for a Service with a credit card or certain other payment instruments in a currency other than the U.S. Dollar, Zendesk may designate the Payment Agent to be Zendesk International Limited, a corporation organized under the laws of Ireland, Registration No. 519184.
444 Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity. Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
445 Personnel: means employees and/or non-employee service providers and contractors of the Zendesk Group engaged by the Zendesk Group in connection with performance hereunder. Personnel: means employees and/or non-employee service providers and contractors of the Zendesk Group engaged by the Zendesk Group in connection with performance hereunder.
446 Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
447 Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, Updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”). “Services” exclude Other Services as that term is defined in this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described. Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, Updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”). “Services” exclude Other Services as that term is defined in this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
448 Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data. Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
449 Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe. Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.
450 Site: means a website operated by the Zendesk Group, including www.zendesk.com, as well as all other websites that the Zendesk Group operates. Site: means a website operated by the Zendesk Group, including www.zendesk.com, as well as all other websites that the Zendesk Group operates.
451 Software: means software provided by Zendesk (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service. Software: means software provided by Zendesk (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.
452 Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent. Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.
453 Supplemental Terms: means the additional terms and conditions that are (a) contained in this Agreement under the Section entitled, “Supplemental Terms and Conditions” which apply and are incorporated into this Agreement with certain Services, features, or functionality; (b) included or incorporated on an Order Form (e.g. when a Deployed Associated Service is purchased); or (c) applicable to Consulting Services when purchased by You. Supplemental Terms: means the additional terms and conditions that are (a) contained in this Agreement under the Section entitled, “Supplemental Terms and Conditions” which apply and are incorporated into this Agreement with certain Services, features, or functionality; (b) included or incorporated on an Order Form (e.g. when a Deployed Associated Service is purchased); or (c) applicable to Consulting Services when purchased by You.
454 Usage Data: means aggregated encoded or anonymized data that the Zendesk Group may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, and which does not contain Personal Data. Usage Data: means aggregated encoded or anonymized data that the Zendesk Group may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, and which does not contain Personal Data.
455 “We,” “Us” or “Our”: means Zendesk as defined below. “We,” “Us” or “Our”: means Zendesk as defined below.
456 Zendesk: means Zendesk, Inc., a Delaware corporation, or any of its successors or assignees. Zendesk: means Zendesk, Inc., a Delaware corporation, or any of its successors or assignees.
457 Zendesk Group: means Zendesk, Inc., a Delaware Corporation together with all its Affiliates. Zendesk Group: means Zendesk, Inc., a Delaware Corporation together with all its Affiliates.
458 2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES 2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES
459 2.1 During the Subscription Term and subject to compliance by You, Agents and End-Users with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Other Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”). 2.1 During the Subscription Term and subject to compliance by You, Agents and End-Users with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Other Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”).
460 2.2 You may not use the Services to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Zendesk from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing. 2.2 You may not use the Services to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Zendesk from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
461 2.3 A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Zendesk, including the Transport Layer Security (TLS) protocol or other protocols accepted by Zendesk, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Zendesk. We assume no responsibility for the reliability or performance of any connections as described in this section. 2.3 A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Zendesk, including the Transport Layer Security (TLS) protocol or other protocols accepted by Zendesk, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Zendesk. We assume no responsibility for the reliability or performance of any connections as described in this section.
462 2.4 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Zendesk or the Zendesk Group, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Zendesk; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement. 2.4 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Zendesk or the Zendesk Group, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Zendesk; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
463 2.5 You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account. 2.5 You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.
464 2.6 In addition to Our rights as set forth in Sections 2 and 8.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users. 2.6 In addition to Our rights as set forth in Sections 2 and 8.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users.
465 2.7 You acknowledge that Zendesk may modify the features and functionality of the Services during the Subscription Term. 2.7 You acknowledge that Zendesk may modify the features and functionality of the Services during the Subscription Term.
466 2.8 You may not access the Services if You are a direct competitor of the Zendesk Group, except with Zendesk’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes. 2.8 You may not access the Services if You are a direct competitor of the Zendesk Group, except with Zendesk’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
467 2.9 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase. 2.9 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
468 ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD. ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.
469 2.10 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Other Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service. 2.10 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Other Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
470 3. CONFIDENTIALITY; SECURITY AND PRIVACY 3. CONFIDENTIALITY; SECURITY AND PRIVACY
471 3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the Personnel who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data. 3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the Personnel who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.
472 3.2 The Zendesk Group will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Service Data” attached hereto, and Supplemental Terms for the Deployed Associated Services, as applicable. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Sections 3.1(b) or 3.1(c); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing. The Zendesk Group’s compliance with the provisions of Sections 3.2 through 3.5 shall be deemed compliance with the Zendesk’s Group’s obligations to protect Service Data as set forth in the Agreement. 3.2 The Zendesk Group will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Service Data” attached hereto, and Supplemental Terms for the Deployed Associated Services, as applicable. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Sections 3.1(b) or 3.1(c); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing. The Zendesk Group’s compliance with the provisions of Sections 3.2 through 3.5 shall be deemed compliance with the Zendesk’s Group’s obligations to protect Service Data as set forth in the Agreement.
473 3.3 To the extent Service Data constitutes Personal Data, You and the Zendesk Group hereby agree that You shall be deemed to be the data controller and the relevant entity in the Zendesk Group Party shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). Unless otherwise specifically agreed to by Zendesk, Service Data may be hosted by the Zendesk Group or their respective authorized third-party service providers in the United States, the EEA or other locations around the world. In providing the Services, Zendesk will engage entities within the Zendesk Group and other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the European Economic Area (the “EEA”), the United States and in other countries and territories. Under no circumstances will any entity in the Zendesk Group be deemed a data controller with respect to Service Data under the Directive or any relevant law or regulation of any Member State as defined in the Directive. 3.3 To the extent Service Data constitutes Personal Data, You and the Zendesk Group hereby agree that You shall be deemed to be the data controller and the relevant entity in the Zendesk Group Party shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). Unless otherwise specifically agreed to by Zendesk, Service Data may be hosted by the Zendesk Group or their respective authorized third-party service providers in the United States, the EEA or other locations around the world. In providing the Services, Zendesk will engage entities within the Zendesk Group and other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the European Economic Area (the “EEA”), the United States and in other countries and territories. Under no circumstances will any entity in the Zendesk Group be deemed a data controller with respect to Service Data under the Directive or any relevant law or regulation of any Member State as defined in the Directive.
474 3.4 If Your principal location is in the EEA, We will ensure, pursuant to Article 25 of the Directive that, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), that such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of the Directive is satisfied; or (c) the transfer is via the EU-US Privacy Shield or Swiss-US Safe Harbor frameworks. Upon Your request and subject to Your entry into Zendesk’s Data Processing Agreement (“DPA”) We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission (known as the, “Model Clauses”), which have been incorporated into the DPA. As a Subscriber, You can execute Our DPA by emailing Your request to Us at privacy@zendesk.com . 3.4 If Your principal location is in the EEA, We will ensure, pursuant to Article 25 of the Directive that, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), that such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of the Directive is satisfied; or (c) the transfer is via the EU-US Privacy Shield or Swiss-US Safe Harbor frameworks. Upon Your request and subject to Your entry into Zendesk’s Data Processing Agreement (“DPA”) We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission (known as the, “Model Clauses”), which have been incorporated into the DPA. As a Subscriber, You can execute Our DPA by emailing Your request to Us at privacy@zendesk.com .
475 3.5 You agree that the Zendesk Group and the third-party service providers that are utilized by the Zendesk Group to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by the Zendesk Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.4. 3.5 You agree that the Zendesk Group and the third-party service providers that are utilized by the Zendesk Group to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by the Zendesk Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.4.
476 3.6 In addition to Service Data, We collect certain information (which may include Personal Data) about You, Agents and End-Users as well as Your and their respective devices, computers and use of the Service. This includes, among other things: 3.6 In addition to Service Data, We collect certain information (which may include Personal Data) about You, Agents and End-Users as well as Your and their respective devices, computers and use of the Service. This includes, among other things:
477 Collecting analytics information when You use the Services. In the Services, analytics information may consist of the feature and function of the Service being used, the associated domain name, the username and IP address of Your Agents or End-Users, additional information required to detail the operation of the function, and which parts of a Service are being affected. The analytics information that Zendesk collects may include elements of Service Data related to the function the Agents or End-Users are performing. Collecting analytics information when You use the Services. In the Services, analytics information may consist of the feature and function of the Service being used, the associated domain name, the username and IP address of Your Agents or End-Users, additional information required to detail the operation of the function, and which parts of a Service are being affected. The analytics information that Zendesk collects may include elements of Service Data related to the function the Agents or End-Users are performing.
478 Aggregating information related to the use of the Services and publishing this information, as segmented by industry, geography and other metrics to provide qualitative insight on customer support metrics and other relevant insights through “Zendesk Benchmark” or similar features. You have the choice whether to participate by enabling Zendesk Benchmark from within the settings in the Services. If You do not want to participate, then You should not enable Zendesk Benchmark. Aggregating information related to the use of the Services and publishing this information, as segmented by industry, geography and other metrics to provide qualitative insight on customer support metrics and other relevant insights through “Zendesk Benchmark” or similar features. You have the choice whether to participate by enabling Zendesk Benchmark from within the settings in the Services. If You do not want to participate, then You should not enable Zendesk Benchmark.
479 Collecting Usage Data which is used to help understand trends in usage of the Services. In addition to collecting and using Usage Data ourselves, the Zendesk Group may share the Usage Data with third parties, including Our subscribers, partners and service providers, for various purposes, including to help Us better understand Our subscribers’ needs and improve Our Services. We may also publish Usage Data to provide relevant information about the Services and for purposes of marketing. Collecting Usage Data which is used to help understand trends in usage of the Services. In addition to collecting and using Usage Data ourselves, the Zendesk Group may share the Usage Data with third parties, including Our subscribers, partners and service providers, for various purposes, including to help Us better understand Our subscribers’ needs and improve Our Services. We may also publish Usage Data to provide relevant information about the Services and for purposes of marketing.
480 3.7 Zendesk may also obtain other information, including Personal Data, from third parties and combine that with information We collect through Our Services. For example, We may have access to certain information from a third party social media or authentication service if You log into Our Services through such service or otherwise provide Us with access to information from such service. Any access that We may have to such information from a third party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing Us to connect with a third party service, You authorize Us to access and store Your name, email address(es), current city, profile picture URL, and other Personal Data that the third party service makes available to Us, and to use and disclose it in accordance with this Agreement and the Zendesk Privacy Policy as in effect from time to time and available here . 3.7 Zendesk may also obtain other information, including Personal Data, from third parties and combine that with information We collect through Our Services. For example, We may have access to certain information from a third party social media or authentication service if You log into Our Services through such service or otherwise provide Us with access to information from such service. Any access that We may have to such information from a third party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing Us to connect with a third party service, You authorize Us to access and store Your name, email address(es), current city, profile picture URL, and other Personal Data that the third party service makes available to Us, and to use and disclose it in accordance with this Agreement and the Zendesk Privacy Policy as in effect from time to time and available here .
481 4. INTELLECTUAL PROPERTY RIGHTS 4. INTELLECTUAL PROPERTY RIGHTS
482 Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Zendesk and belong exclusively to Zendesk. The Zendesk Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. Zendesk®, and the Zendesk Group’s other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of the Zendesk Group (collectively, “Marks”), and You may only use applicable Marks in a manner permitted by Our Trademark Usage Guidelines to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products. Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Zendesk and belong exclusively to Zendesk. The Zendesk Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. Zendesk®, and the Zendesk Group’s other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of the Zendesk Group (collectively, “Marks”), and You may only use applicable Marks in a manner permitted by Our Trademark Usage Guidelines to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
483 5. THIRD PARTY SERVICES 5. THIRD PARTY SERVICES
484 If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services are governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Other Services. We cannot guarantee the continued availability of such Other Service features, and may cease enabling access to them without entitling You to any refund, credit, or other compensation, if, for example and without limitation, the provider of an Other Service ceases to make the Other Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Zendesk with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Zendesk to disclose Your Login, as well as Service Data as necessary to facilitate the use or enablement of such Other Services. If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services are governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Other Services. We cannot guarantee the continued availability of such Other Service features, and may cease enabling access to them without entitling You to any refund, credit, or other compensation, if, for example and without limitation, the provider of an Other Service ceases to make the Other Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Zendesk with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Zendesk to disclose Your Login, as well as Service Data as necessary to facilitate the use or enablement of such Other Services.
485 6. BILLING, PLAN MODIFICATIONS AND PAYMENTS 6. BILLING, PLAN MODIFICATIONS AND PAYMENTS
486 6.1 Unless otherwise indicated on an Order Form referencing this Agreement, in the Supplemental Terms entitled “Service Specific Terms”, or Additional Terms (as defined in Section 12.2) and subject to Section 6.2, all charges associated with Your access to and use of a Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term, or, with respect to a Deployed Associated Service, at the time such Deployed Associated Service is purchased, subscribed to or otherwise deployed. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Agents and End-Users. 6.1 Unless otherwise indicated on an Order Form referencing this Agreement, in the Supplemental Terms entitled “Service Specific Terms”, or Additional Terms (as defined in Section 12.2) and subject to Section 6.2, all charges associated with Your access to and use of a Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term, or, with respect to a Deployed Associated Service, at the time such Deployed Associated Service is purchased, subscribed to or otherwise deployed. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Agents and End-Users.
487 6.2 If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use a Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades. 6.2 If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use a Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
488 6.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Zendesk does not accept any liability for such loss. 6.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Zendesk does not accept any liability for such loss.
489 6.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against the Zendesk Group measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced. 6.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against the Zendesk Group measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
490 6.5 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services and for periodic Subscription Charges applicable to Deployed Associated Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Zendesk and the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent. 6.5 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services and for periodic Subscription Charges applicable to Deployed Associated Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Zendesk and the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
491 6.6 Payments made by credit card, debit card or certain other payment instruments for the Zendesk Service are billed and processed by Zendesk’s Payment Agent. To the extent the Payment Agent is not Zendesk, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Zendesk and shall not be construed to be providing the applicable Service. 6.6 Payments made by credit card, debit card or certain other payment instruments for the Zendesk Service are billed and processed by Zendesk’s Payment Agent. To the extent the Payment Agent is not Zendesk, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Zendesk and shall not be construed to be providing the applicable Service.
492 7. CREDITS POLICY 7. CREDITS POLICY
493 We may, at Our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals. Zendesk reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by Zendesk when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued. We may, at Our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals. Zendesk reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by Zendesk when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
494 8. CANCELLATION AND TERMINATION 8. CANCELLATION AND TERMINATION
495 8.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your subscription to a Service (including any and all Deployed Associated Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Deployed Associated Services to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences. 8.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your subscription to a Service (including any and all Deployed Associated Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Deployed Associated Services to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences.
496 8.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. 8.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.
497 8.3 Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2, 8.4 and 8.5, in addition to other amounts You may owe Zendesk, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Zendesk, provided that You provide advance notice of such breach to Zendesk and afford Zendesk not less than thirty (30) days to reasonably cure such breach as provided for in Section 8.5 herein. 8.3 Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2, 8.4 and 8.5, in addition to other amounts You may owe Zendesk, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Zendesk, provided that You provide advance notice of such breach to Zendesk and afford Zendesk not less than thirty (30) days to reasonably cure such breach as provided for in Section 8.5 herein.
498 8.4 We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Agents or End-Users have violated this Agreement. This includes the removal or disablement of Service Data in accordance with Our Copyright Infringement Notice and Takedown Policy available at www.zendesk.com/company/trademark-property/?cta=dmca#DMCA . Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion. 8.4 We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Agents or End-Users have violated this Agreement. This includes the removal or disablement of Service Data in accordance with Our Copyright Infringement Notice and Takedown Policy available at www.zendesk.com/company/trademark-property/?cta=dmca#DMCA . Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
499 8.5 A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination. 8.5 A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
500 8.6 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will have the right to delete or destroy all copies of Service Data in Our systems or otherwise in Our possession or control, unless prohibited by law. 8.6 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will have the right to delete or destroy all copies of Service Data in Our systems or otherwise in Our possession or control, unless prohibited by law.
501 9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS 9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
502 9.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so. 9.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
503 9.2 We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 8.5 herein. 9.2 We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 8.5 herein.
504 9.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. 9.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
505 10. LIMITATION OF LIABILITY 10. LIMITATION OF LIABILITY
506 10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. 10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
507 10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE ZENDESK GROUP’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT. 10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE ZENDESK GROUP’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
508 10.3 Some jurisdictions 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 JURISDICTIONS, THE ZENDESK GROUP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. 10.3 Some jurisdictions 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 JURISDICTIONS, THE ZENDESK GROUP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
509 10.4 Any claims or damages that You may have against Zendesk shall only be enforceable against Zendesk and not any other entity or its officers, directors, representatives or agents. 10.4 Any claims or damages that You may have against Zendesk shall only be enforceable against Zendesk and not any other entity or its officers, directors, representatives or agents.
510 11. INDEMNIFICATION 11. INDEMNIFICATION
511 11.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Zendesk for such defense, provided that (a) You promptly notify Zendesk of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Zendesk in connection therewith. If use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Zendesk, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Zendesk for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 11.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Zendesk; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. 11.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Zendesk for such defense, provided that (a) You promptly notify Zendesk of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Zendesk in connection therewith. If use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Zendesk, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Zendesk for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 11.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Zendesk; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing.
512 The provisions of this Section 11.1 state the sole, exclusive and entire liability of Zendesk to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users. The provisions of this Section 11.1 state the sole, exclusive and entire liability of Zendesk to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.
513 11.2 You will indemnify and hold Zendesk harmless against any claim brought by a third party against Zendesk arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement; provided (a) We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith. 11.2 You will indemnify and hold Zendesk harmless against any claim brought by a third party against Zendesk arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement; provided (a) We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.
514 12. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT 12. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
515 12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the Zendesk Group or in connection with any merger or change of control of Zendesk or the Zendesk Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns. 12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the Zendesk Group or in connection with any merger or change of control of Zendesk or the Zendesk Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
516 12.2 This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Zendesk with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services as detailed in a Supplement hereto or that We offer as part of or distinct from the Services (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control. 12.2 This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Zendesk with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services as detailed in a Supplement hereto or that We offer as part of or distinct from the Services (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control.
517 12.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Zendesk as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement. 12.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Zendesk as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
518 13. SEVERABILITY 13. SEVERABILITY
519 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
520 14. EXPORT COMPLIANCE AND USE RESTRICTIONS 14. EXPORT COMPLIANCE AND USE RESTRICTIONS
521 The Services and other Software or components of the Services that We may provide or make available to You, Agents or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You, Agents and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located. The Services and other Software or components of the Services that We may provide or make available to You, Agents or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You, Agents and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located.
522 15. RELATIONSHIP OF THE PARTIES 15. RELATIONSHIP OF THE PARTIES
523 The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
524 16. NOTICE 16. NOTICE
525 All notices to be provided by Zendesk to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Zendesk in writing by Courier or U.S. mail to 1019 Market Street, San Francisco, California 94103 U.S.A. Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above. All notices to be provided by Zendesk to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Zendesk in writing by Courier or U.S. mail to 1019 Market Street, San Francisco, California 94103 U.S.A. Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
526 17. GOVERNING LAW 17. GOVERNING LAW
527 This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users.
528 18. FEDERAL GOVERNMENT END USE PROVISIONS 18. FEDERAL GOVERNMENT END USE PROVISIONS
529 If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement. If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
530 19. ANTI-CORRUPTION 19. ANTI-CORRUPTION
531 You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@zendesk.com . You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@zendesk.com .
532 20. SURVIVAL 20. SURVIVAL
533 Sections 1, 3.1, 4 and 9-20 shall survive any termination of our agreement with respect to use of the Services by You, Agents or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement. Sections 1, 3.1, 4 and 9-20 shall survive any termination of our agreement with respect to use of the Services by You, Agents or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
534 SUPPLEMENTAL TERMS AND CONDITIONS SUPPLEMENTAL TERMS AND CONDITIONS
535 SECTION 1: SERVICE-SPECIFIC TERMS SECTION 1: SERVICE-SPECIFIC TERMS
536 The terms and conditions in the section entitled, “General Terms and Conditions” (“General Terms”) apply generally to all Services. This section contains supplemental service-specific terms that are in addition to the General Terms. The terms and conditions in the section entitled, “General Terms and Conditions” (“General Terms”) apply generally to all Services. This section contains supplemental service-specific terms that are in addition to the General Terms.
537 Supplemental Terms for Zendesk’s Talk Service (“Zendesk Talk”): Supplemental Terms for Zendesk’s Talk Service (“Zendesk Talk”):
538 If Your Service Plan for Zendesk Support allows You to use Zendesk Talk or You otherwise subscribe to or utilize Zendesk Talk as a Service, the following Supplemental Terms apply: If Your Service Plan for Zendesk Support allows You to use Zendesk Talk or You otherwise subscribe to or utilize Zendesk Talk as a Service, the following Supplemental Terms apply:
539 You understand and agree that (a) Zendesk Talk is not intended to support or carry emergency calls to any emergency services, such as public safety answering points; (b) We will not be held liable for any claim, damages or loss (and You hereby waive any and all such claims or causes of action), arising from or relating to Your (or Agents’ or End-Users’) inability to use Zendesk Talk to make such emergency calls; (c) You are solely responsible for Your operation of Zendesk Talk (including the available texting functionality) in compliance with all applicable laws in all jurisdictions, including, but not limited to, telephone recording and wiretapping laws and laws related to telemarketing and spam, such as the Telephone Consumer Protection Act; and (d) You will defend, hold harmless and indemnify Us from and against any third party claim arising from any of the foregoing. You understand and agree that (a) Zendesk Talk is not intended to support or carry emergency calls to any emergency services, such as public safety answering points; (b) We will not be held liable for any claim, damages or loss (and You hereby waive any and all such claims or causes of action), arising from or relating to Your (or Agents’ or End-Users’) inability to use Zendesk Talk to make such emergency calls; (c) You are solely responsible for Your operation of Zendesk Talk (including the available texting functionality) in compliance with all applicable laws in all jurisdictions, including, but not limited to, telephone recording and wiretapping laws and laws related to telemarketing and spam, such as the Telephone Consumer Protection Act; and (d) You will defend, hold harmless and indemnify Us from and against any third party claim arising from any of the foregoing.
540 Zendesk may disable the phone numbers provided to You if unused or substantially underused for sixty (60) days, or if Your subscription to the Service, Account or rights to access and/or use the Service are otherwise suspended, terminated, or cancelled. Zendesk may disable the phone numbers provided to You if unused or substantially underused for sixty (60) days, or if Your subscription to the Service, Account or rights to access and/or use the Service are otherwise suspended, terminated, or cancelled.
541 At Zendesk’s election, Subscription Charges for Zendesk Talk may be charged in arrears or by requiring You to prepay for expected usage. To the extent that You have or are required to prepay for expected usage of Zendesk Talk, Your credit card will automatically be charged with the same amount and by the same payment method chosen when You first establish a prepaid credit for Zendesk Talk, or by such additional amount You request as a regular prepaid credit. At Zendesk’s election, Subscription Charges for Zendesk Talk may be charged in arrears or by requiring You to prepay for expected usage. To the extent that You have or are required to prepay for expected usage of Zendesk Talk, Your credit card will automatically be charged with the same amount and by the same payment method chosen when You first establish a prepaid credit for Zendesk Talk, or by such additional amount You request as a regular prepaid credit.
542 If Subscriber prepays for Zendesk Talk via check, wire, or ACH, Zendesk reserves the right to automatically re-invoice Subscriber for the same amount as the previous pre-payment amount if Subscriber’s balance reaches $0.00. If Subscriber wishes to cancel or change this automatic re-charge option, then Subscriber should contact its Sales Representative or support@zendesk.com . If Subscriber prepays for Zendesk Talk via check, wire, or ACH, Zendesk reserves the right to automatically re-invoice Subscriber for the same amount as the previous pre-payment amount if Subscriber’s balance reaches $0.00. If Subscriber wishes to cancel or change this automatic re-charge option, then Subscriber should contact its Sales Representative or support@zendesk.com .
543 If Your Zendesk Talk Service Plan includes Zendesk Text, then Subscriber agrees that only its Agents who have purchased both Zendesk Talk and Zendesk Text are authorized to use Zendesk Text. Zendesk reserves the right to monitor and periodically audit Your use of Zendesk Talk and Zendesk Text to ensure that Your use complies with these Supplemental Terms and the Zendesk Talk Service Plan restrictions on Our Site. Should Zendesk discover that Your or any Agent’s use of Zendesk Talk or Zendesk Text is not in compliance with these Supplemental Terms and the Zendesk Talk Service Plan restrictions on Our Site, Zendesk reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us. If Your Zendesk Talk Service Plan includes Zendesk Text, then Subscriber agrees that only its Agents who have purchased both Zendesk Talk and Zendesk Text are authorized to use Zendesk Text. Zendesk reserves the right to monitor and periodically audit Your use of Zendesk Talk and Zendesk Text to ensure that Your use complies with these Supplemental Terms and the Zendesk Talk Service Plan restrictions on Our Site. Should Zendesk discover that Your or any Agent’s use of Zendesk Talk or Zendesk Text is not in compliance with these Supplemental Terms and the Zendesk Talk Service Plan restrictions on Our Site, Zendesk reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.
544 Use of Zendesk Talk and the related functionality is subject to the obligation to pay applicable usage fees, Subscription Charges and other applicable charges stated here . By enabling or otherwise using Zendesk Talk, You are agreeing to pay these charges. Usage fees and charges are subject to change and may be revised by Zendesk at any time. Use of Zendesk Talk and the related functionality is subject to the obligation to pay applicable usage fees, Subscription Charges and other applicable charges stated here . By enabling or otherwise using Zendesk Talk, You are agreeing to pay these charges. Usage fees and charges are subject to change and may be revised by Zendesk at any time.
545 Some jurisdictions may require that Your business have an address within the jurisdiction to purchase a phone number through Zendesk Talk. If You are in such a jurisdiction, You agree to provide a business address within the jurisdiction. You further authorize Zendesk to disclose the given address to our third party voice service provider, Twilio, Inc. (“Twilio”), and any necessary governmental agency. Twilio’s and the necessary governmental agency’s terms and policies will govern their use of the address and the Agreement and Privacy Policy do not govern their use of the address. You further understand that Your phone number in the jurisdiction may be taken out of service if You are unable to provide a local address in any such jurisdiction. Some jurisdictions may require that Your business have an address within the jurisdiction to purchase a phone number through Zendesk Talk. If You are in such a jurisdiction, You agree to provide a business address within the jurisdiction. You further authorize Zendesk to disclose the given address to our third party voice service provider, Twilio, Inc. (“Twilio”), and any necessary governmental agency. Twilio’s and the necessary governmental agency’s terms and policies will govern their use of the address and the Agreement and Privacy Policy do not govern their use of the address. You further understand that Your phone number in the jurisdiction may be taken out of service if You are unable to provide a local address in any such jurisdiction.Supplemental Terms for Zendesk’s Guide Service (“Zendesk Guide”):
546 If Your Service Plan for Zendesk Support allows You to use Zendesk Guide or You otherwise subscribe to or utilize Zendesk Guide as a Service, the following Supplemental Terms apply:
547 Use of Zendesk Guide is subject to the obligation to pay applicable Subscription Charges as stated on the pricing pages of the Site. Some features of Zendesk Guide may be subject to additional Subscription Charges and Consumption Capacity limits as explained on the Zendesk Guide pricing page on the Site. By enabling or otherwise using Zendesk Guide, You are agreeing to pay these charges and agreeing to the applicable feature terms. “Consumption Capacity” means the maximum number of Ticket deflections available to You using the Answer Bot feature of Zendesk Guide for the Service Plan to which You subscribe.
548 Supplemental Terms for Zendesk’s Explore Service (“Zendesk Explore”): Subscription Charges for certain Zendesk Guide features may be charged in arrears or require You to prepay for expected consumption. Unless an earlier expiration date is communicated to You at time of purchase, Consumption Capacity will expire and no longer be redeemable at the end of the time period to which the Consumption Capacity is allocated. If Your Account reaches a Consumption Capacity limit during the applicable time period, the functionality of the relevant feature will not be available in Your Account until the beginning of the next time period unless You purchase additional Consumption Capacity by upgrading to a higher Service Plan.Supplemental Terms for Zendesk’s Explore Service (“Zendesk Explore”):
549 If Your Service Plan for Zendesk Support allows You to use Zendesk Explore or You otherwise subscribe to or utilize Zendesk Explore as a Service, the following Supplemental Terms apply: If Your Service Plan for Zendesk Support allows You to use Zendesk Explore or You otherwise subscribe to or utilize Zendesk Explore as a Service, the following Supplemental Terms apply:
550 The definition of “Software” in the Agreement shall include connectors that are used by You to connect Your data sources to Zendesk Explore or that allow You to use any functionality in connection with Zendesk Explore. The definition of “Software” in the Agreement shall include connectors that are used by You to connect Your data sources to Zendesk Explore or that allow You to use any functionality in connection with Zendesk Explore.
551 Use of Zendesk Explore may be subject to the obligation to pay applicable usage fees, platform fees and other applicable data storage charges as detailed on the Site. By enabling or otherwise using Zendesk Explore, You are agreeing to pay all applicable fees and charges with Your use of Zendesk Explore. Use of Zendesk Explore may be subject to the obligation to pay applicable usage fees, platform fees and other applicable data storage charges as detailed on the Site. By enabling or otherwise using Zendesk Explore, You are agreeing to pay all applicable fees and charges with Your use of Zendesk Explore.
552 Supplemental Terms for Certain Zendesk Deployed Associated Services (Add-Ons): Supplemental Terms for Certain Zendesk Deployed Associated Services (Add-Ons):
553 For Subscribers who have purchased or been given access to the Deployed Associated Services listed below, there are Supplemental Terms that will be provided to You on the corresponding Order Form which will supplement the Agreement: For Subscribers who have purchased or been given access to the Deployed Associated Services listed below, there are Supplemental Terms that will be provided to You on the corresponding Order Form which will supplement the Agreement:
554 Light Agent Deployed Associated Service for Zendesk Support Light Agent Deployed Associated Service for Zendesk Support
555 High Volume API Deployed Associated Service for Zendesk Support High Volume API Deployed Associated Service for Zendesk Support
556 Data Center Location Deployed Associated Service for Zendesk Support Data Center Location Deployed Associated Service for Zendesk Support
557 Priority Customer Support Deployed Associated Service for Zendesk Support Priority Customer Support Deployed Associated Service for Zendesk Support
558 Advanced Security Deployed Associated Service for Zendesk Support Advanced Security Deployed Associated Service for Zendesk Support
559 Supplemental Terms for Zendesk’s API and SDKs: Supplemental Terms for Zendesk’s API and SDKs:
560 If You use or access any API for the purpose of developing, implementing and Publishing Applications (as defined in the API Agreement), You hereby agree that Your use shall be governed by the Application Developer and API License Agreement (“API Agreement”). Further, if You use or access any SDK (defined below), You hereby agree that Your use of the SDK shall be governed by the API Agreement, in addition to this Agreement. “SDK” means any software development kit related to a Service developed by Zendesk and made available to You. If You use or access any API for the purpose of developing, implementing and Publishing Applications (as defined in the API Agreement), You hereby agree that Your use shall be governed by the Application Developer and API License Agreement (“API Agreement”). Further, if You use or access any SDK (defined below), You hereby agree that Your use of the SDK shall be governed by the API Agreement, in addition to this Agreement. “SDK” means any software development kit related to a Service developed by Zendesk and made available to You.
561 Supplemental Terms for Zendesk’s Marketplace: Supplemental Terms for Zendesk’s Marketplace:
562 If You use or access the Marketplace, as available in Your Account and at https://www.zendesk.com/apps , You hereby agree to the Marketplace Terms of Use (the “Marketplace Terms”). As described in the Marketplace Terms, certain additional terms may apply to Your use of Applications (as defined in the Marketplace Terms). If You use or access the Marketplace, as available in Your Account and at https://www.zendesk.com/apps , You hereby agree to the Marketplace Terms of Use (the “Marketplace Terms”). As described in the Marketplace Terms, certain additional terms may apply to Your use of Applications (as defined in the Marketplace Terms).
563 SUPPLEMENTAL TERMS AND CONDITIONS SUPPLEMENTAL TERMS AND CONDITIONS
564 SECTION 2: HOW WE PROTECT SERVICE DATA SECTION 2: HOW WE PROTECT SERVICE DATA
565 The Zendesk Group is committed to providing a robust and comprehensive security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary. The Zendesk Group is committed to providing a robust and comprehensive security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary.
566 Security Measures Utilized by Us Security Measures Utilized by Us
567 As provided for in Section 3.2 of the Agreement, We will abide by the these Security Measures to protect Service Data as is reasonably necessary to provide the Services: As provided for in Section 3.2 of the Agreement, We will abide by the these Security Measures to protect Service Data as is reasonably necessary to provide the Services:
568 1. Security Policies and Personnel. We have and will maintain a managed security program to identify risks and implement preventative technology, as well as technology and processes for common attack mitigation. This program is and will be reviewed on a regular basis to provide for continued effectiveness and accuracy. We have, and will maintain, a full-time information security team responsible for monitoring and reviewing security infrastructure for Our networks, systems and services, responding to security incidents, and developing and delivering training to Our employees in compliance with Our security policies. 1. Security Policies and Personnel. We have and will maintain a managed security program to identify risks and implement preventative technology, as well as technology and processes for common attack mitigation. This program is and will be reviewed on a regular basis to provide for continued effectiveness and accuracy. We have, and will maintain, a full-time information security team responsible for monitoring and reviewing security infrastructure for Our networks, systems and services, responding to security incidents, and developing and delivering training to Our employees in compliance with Our security policies.
569 2. Data Transmission. We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies) over the internet, except for certain Other Services that do not support encryption, which You may link to through the Services at Your election. 2. Data Transmission. We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies) over the internet, except for certain Other Services that do not support encryption, which You may link to through the Services at Your election.
570 3. Incident Response. We have an incident management process for security events that may affect the confidentiality, integrity, or availability of Our systems or data. This process specifies courses of action, procedures for notification, escalation, mitigation, and documentation. The incident response program includes 24×7 centralized monitoring systems and on-call staffing to respond to service incidents. 3. Incident Response. We have an incident management process for security events that may affect the confidentiality, integrity, or availability of Our systems or data. This process specifies courses of action, procedures for notification, escalation, mitigation, and documentation. The incident response program includes 24×7 centralized monitoring systems and on-call staffing to respond to service incidents.
571 4. Access Control and Privilege Management. We restrict access to customer production systems to operational personnel. We require such personnel to have unique IDs and associated cryptographic keys. These keys are used to authenticate and identify each person’s activities on Our systems, including access to Service Data. Upon hire, Our operational personnel are assigned unique keys. Upon termination, these keys are revoked. Access rights and levels are based on Our employees’ job function and role, using the concepts of least-privilege and need-to-know to match access privileges to defined responsibilities. 4. Access Control and Privilege Management. We restrict access to customer production systems to operational personnel. We require such personnel to have unique IDs and associated cryptographic keys. These keys are used to authenticate and identify each person’s activities on Our systems, including access to Service Data. Upon hire, Our operational personnel are assigned unique keys. Upon termination, these keys are revoked. Access rights and levels are based on Our employees’ job function and role, using the concepts of least-privilege and need-to-know to match access privileges to defined responsibilities.
572 5. Network Management and Security. The data centers utilized by Us maintain industry standard fully redundant and secure network architecture with reasonably sufficient bandwidth as well as redundant network infrastructure to mitigate the impact of individual component failure. Our security team utilizes industry standard utilities to provide defense against known common unauthorized network activity, monitors security advisory lists for vulnerabilities, and undertakes regular external vulnerability audits. 5. Network Management and Security. The data centers utilized by Us maintain industry standard fully redundant and secure network architecture with reasonably sufficient bandwidth as well as redundant network infrastructure to mitigate the impact of individual component failure. Our security team utilizes industry standard utilities to provide defense against known common unauthorized network activity, monitors security advisory lists for vulnerabilities, and undertakes regular external vulnerability audits.
573 6. Data Center Environment and Physical Security. The data center environments which are utilized by Us in connection with Our provision of the Service employ the following security measures: 6. Data Center Environment and Physical Security. The data center environments which are utilized by Us in connection with Our provision of the Service employ the following security measures:
574 A security organization responsible for physical security functions 24x7x365. A security organization responsible for physical security functions 24x7x365.
575 Access to areas where systems or system components are installed or stored within data centers is restricted through security measures and policies consistent with industry standards. Access to areas where systems or system components are installed or stored within data centers is restricted through security measures and policies consistent with industry standards.
576 N+1 uninterruptable power supply and HVAC systems, backup power generator architecture and advanced fire suppression. N+1 uninterruptable power supply and HVAC systems, backup power generator architecture and advanced fire suppression.
577 Technical and Organizational Security Measures for Third-Party Service Providers Technical and Organizational Security Measures for Third-Party Service Providers
578 As provided for in Section 3.5 of the Agreement, any third-party service providers that are utilized by the Zendesk Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to, among the other requirements in Section 3.5, their implementing and maintaining compliance with the following appropriate technical and organizational security measures: As provided for in Section 3.5 of the Agreement, any third-party service providers that are utilized by the Zendesk Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to, among the other requirements in Section 3.5, their implementing and maintaining compliance with the following appropriate technical and organizational security measures:
579 1. Physical Access Controls. Third-party service providers shall take reasonable measures, such as security personnel and secured buildings and factory premises, to prevent unauthorized persons from gaining physical access to data processing systems in which Service Data is Processed. 1. Physical Access Controls. Third-party service providers shall take reasonable measures, such as security personnel and secured buildings and factory premises, to prevent unauthorized persons from gaining physical access to data processing systems in which Service Data is Processed.
580 2. System Access Controls. Third-party service providers shall take reasonable measures to prevent data processing systems from being used without authorization. These controls shall vary based on the nature of Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels. 2. System Access Controls. Third-party service providers shall take reasonable measures to prevent data processing systems from being used without authorization. These controls shall vary based on the nature of Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels.
581 3. Data Access Controls. Third-party service providers shall take reasonable measures to provide that Service Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to access Service Data only have access to Service Data to which they have privilege of access; and, that Service Data cannot be read, copied, modified or removed without authorization in the course of Processing. 3. Data Access Controls. Third-party service providers shall take reasonable measures to provide that Service Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to access Service Data only have access to Service Data to which they have privilege of access; and, that Service Data cannot be read, copied, modified or removed without authorization in the course of Processing.
582 4. Transmission Controls. Third-party service providers shall take reasonable measures to ensure that it is possible to check and establish to which entities the transfer of Service Data by means of data transmission facilities is envisaged so Service Data cannot be read, copied, modified or removed without authorization during electronic transmission or transport. 4. Transmission Controls. Third-party service providers shall take reasonable measures to ensure that it is possible to check and establish to which entities the transfer of Service Data by means of data transmission facilities is envisaged so Service Data cannot be read, copied, modified or removed without authorization during electronic transmission or transport.
583 5. Input Controls. Third-party service providers shall take reasonable measures to provide that it is possible to check and establish whether and by whom Service Data has been entered into data processing systems, modified or removed; and, any of transfer of Service Data to a third-party service providers is via secure file transfer. 5. Input Controls. Third-party service providers shall take reasonable measures to provide that it is possible to check and establish whether and by whom Service Data has been entered into data processing systems, modified or removed; and, any of transfer of Service Data to a third-party service providers is via secure file transfer.
584 6. Data Protection. Third-party service providers shall take reasonable measures to provide that Service Data is secured to protect against accidental destruction or loss. 6. Data Protection. Third-party service providers shall take reasonable measures to provide that Service Data is secured to protect against accidental destruction or loss.
585 7. Logical Separation. Third-party service providers shall logically segregate Service Data from the data of other parties on its systems to ensure that Service Data may be Processed separately. 7. Logical Separation. Third-party service providers shall logically segregate Service Data from the data of other parties on its systems to ensure that Service Data may be Processed separately.
586 SUPPLEMENTAL TERMS AND CONDITIONS SUPPLEMENTAL TERMS AND CONDITIONS
587 SECTION 3: COUNTRY-SPECIFIC TERMS SECTION 3: COUNTRY-SPECIFIC TERMS
588 Japan: Japan:
589 You agree that You are responsible for notifying the End-Users using Our Services via Your Account about how the Zendesk Group may use End-Users’ Personal Data as described in the Agreement and obtaining prior consent from End-Users to disclose their Personal Data to Us. You agree that You are responsible for notifying the End-Users using Our Services via Your Account about how the Zendesk Group may use End-Users’ Personal Data as described in the Agreement and obtaining prior consent from End-Users to disclose their Personal Data to Us.
590 Brazil: Brazil:
591 Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in the Agreement, is collected, stored, used and/or processed in accordance with Brazilian Law No. 12,965/2014. By using Our Services You expressly consent to the collection, use, storage and processing of Your Personal Data by Us as described. Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in the Agreement, is collected, stored, used and/or processed in accordance with Brazilian Law No. 12,965/2014. By using Our Services You expressly consent to the collection, use, storage and processing of Your Personal Data by Us as described.
592 Australia: Australia:
593 Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in the Agreement, is collected, stored, used and/or processed in compliance with the Australian Privacy Act 1988 (Commonwealth) and the Australian Privacy Principles as We further detail here . If You are dissatisfied with Our handling of a complaint or do not agree with the resolution proposed by Us, You may make a complaint to the Office of the Australian Information Commissioner (OAIC) by contacting the OAIC using the methods listed on their website . Alternatively, You may request that We pass on the details of Your complaint to the OAIC directly. Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in the Agreement, is collected, stored, used and/or processed in compliance with the Australian Privacy Act 1988 (Commonwealth) and the Australian Privacy Principles as We further detail here . If You are dissatisfied with Our handling of a complaint or do not agree with the resolution proposed by Us, You may make a complaint to the Office of the Australian Information Commissioner (OAIC) by contacting the OAIC using the methods listed on their website . Alternatively, You may request that We pass on the details of Your complaint to the OAIC directly.
594 New Zealand: New Zealand:
595 Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in the Agreement, is collected, stored, used and/or processed in compliance with the New Zealand Privacy Act (1993) and its 12 Information Privacy Principles (NZ IPPs) as We further detail here . Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in the Agreement, is collected, stored, used and/or processed in compliance with the New Zealand Privacy Act (1993) and its 12 Information Privacy Principles (NZ IPPs) as We further detail here .
596 Singapore: Singapore:
597 Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in the Agreement, is collected, stored, used and/or processed in compliance with the Zendesk Group’s obligations under the Personal Data Protection Act 2012 of Singapore (“PDPA”) as We further detail here . Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in the Agreement, is collected, stored, used and/or processed in compliance with the Zendesk Group’s obligations under the Personal Data Protection Act 2012 of Singapore (“PDPA”) as We further detail here .
598 Canada: Canada:
599 Personal Data (as the term is defined in the Personal Information Protection and Electronic Documents Act of Canada (PIPEDA)) will be collected, stored, used and/or processed by the Zendesk Group in compliance with the Zendesk Group’s obligations under PIPEDA. Personal Data (as the term is defined in the Personal Information Protection and Electronic Documents Act of Canada (PIPEDA)) will be collected, stored, used and/or processed by the Zendesk Group in compliance with the Zendesk Group’s obligations under PIPEDA.
600 SUPPLEMENTAL TERMS AND CONDITIONS SUPPLEMENTAL TERMS AND CONDITIONS
601 SECTION 4: CONSULTING SERVICES SECTION 4: CONSULTING SERVICES
602 If Subscriber has engaged Zendesk for the provision of professional services (including any training, success, and implementation services, “Consulting Services”) as indicated on an Order Form, the provision of such Consulting Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Consulting Services must be scheduled for completion by Subscriber within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Zendesk, intending to be legally bound, agree to the terms set forth below. If Subscriber has engaged Zendesk for the provision of professional services (including any training, success, and implementation services, “Consulting Services”) as indicated on an Order Form, the provision of such Consulting Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Consulting Services must be scheduled for completion by Subscriber within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Zendesk, intending to be legally bound, agree to the terms set forth below.
603 1. Scope. All Consulting Services pursuant to the Agreement provided by Zendesk to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided. 1. Scope. All Consulting Services pursuant to the Agreement provided by Zendesk to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided.
604 2. Retention. Subscriber hereby retains Zendesk to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Zendesk shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW with respect to such Consulting Services. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”). 2. Retention. Subscriber hereby retains Zendesk to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Zendesk shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW with respect to such Consulting Services. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).
605 3. Performance of Consulting Services. 3. Performance of Consulting Services.
606 3.1 Each SOW will include reasonable details about Consulting Services, including, at a minimum, the Fees charged and the qualified employees and/or non-employee contractors of Zendesk (“Subcontractors” and together with Zendesk’s employees for the purposes of these Supplemental terms, “Consulting Services Personnel”) employed in performing the Consulting Services. Zendesk and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner. 3.1 Each SOW will include reasonable details about Consulting Services, including, at a minimum, the Fees charged and the qualified employees and/or non-employee contractors of Zendesk (“Subcontractors” and together with Zendesk’s employees for the purposes of these Supplemental terms, “Consulting Services Personnel”) employed in performing the Consulting Services. Zendesk and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
607 3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Subscriber’s Representative” and “Zendesk’s Representative”, respectively). Any Subcontractor (defined below) designated by Zendesk to perform any portion of the Consulting Services will designate a representative to interface with Subscriber and Zendesk on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”). 3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Subscriber’s Representative” and “Zendesk’s Representative”, respectively). Any Subcontractor (defined below) designated by Zendesk to perform any portion of the Consulting Services will designate a representative to interface with Subscriber and Zendesk on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”).
608 3.3 Zendesk will perform the Consulting Services, directly or through a Subcontractor of its choice. Subscriber agrees to provide, at no cost to Zendesk, timely and adequate assistance and other resources reasonably requested by Zendesk to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Zendesk, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder. 3.3 Zendesk will perform the Consulting Services, directly or through a Subcontractor of its choice. Subscriber agrees to provide, at no cost to Zendesk, timely and adequate assistance and other resources reasonably requested by Zendesk to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Zendesk, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder.
609 3.4 In performing the Consulting Services, Zendesk will provide such resources, and utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Zendesk’s election of Subcontractors by specifying its objection to Zendesk, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Zendesk may replace Consulting Services Personnel in its normal course of business, provided that Zendesk will be responsible for the performance of Consulting Services by all Consulting Services Personnel. 3.4 In performing the Consulting Services, Zendesk will provide such resources, and utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Zendesk’s election of Subcontractors by specifying its objection to Zendesk, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Zendesk may replace Consulting Services Personnel in its normal course of business, provided that Zendesk will be responsible for the performance of Consulting Services by all Consulting Services Personnel.
610 3.5 Zendesk will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. Zendesk will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Zendesk’s obligations under the Agreement in accordance with its terms. 3.5 Zendesk will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. Zendesk will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Zendesk’s obligations under the Agreement in accordance with its terms.
611 3.6 With Subscriber’s approval, Zendesk may enter (“assume into”) Subscriber’s Account as needed to provide the Consulting Services. 3.6 With Subscriber’s approval, Zendesk may enter (“assume into”) Subscriber’s Account as needed to provide the Consulting Services.
612 3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Zendesk. If Zendesk elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Zendesk shall be entitled to an adjustment in Fees pursuant to the changes reflected in the Change Order. Zendesk shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order. 3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Zendesk. If Zendesk elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Zendesk shall be entitled to an adjustment in Fees pursuant to the changes reflected in the Change Order. Zendesk shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.
613 3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Zendesk shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days after the date of the Completion Notice to provide Zendesk with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete and the deliverables accepted absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based. 3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Zendesk shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days after the date of the Completion Notice to provide Zendesk with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete and the deliverables accepted absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based.
614 4. Fees; Payment Terms. 4. Fees; Payment Terms.
615 4.1 Subscriber will pay Zendesk the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Zendesk shall invoice Subscriber for the Consulting Services provided on a monthly basis. All Fees are due and payable upon date of invoice, except for Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice. 4.1 Subscriber will pay Zendesk the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Zendesk shall invoice Subscriber for the Consulting Services provided on a monthly basis. All Fees are due and payable upon date of invoice, except for Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice.
616 4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Zendesk will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Zendesk will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order. 4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Zendesk will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Zendesk will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order.
617 4.3 The performance of Consulting Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Fees which become payable by Subscriber. Zendesk may refuse to perform Consulting Services unless and until such retainer is paid to Zendesk. 4.3 The performance of Consulting Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Fees which become payable by Subscriber. Zendesk may refuse to perform Consulting Services unless and until such retainer is paid to Zendesk.
618 4.4 In addition to any and all Fees, Subscriber will reimburse Zendesk for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations resulting from Subscriber’s request. incurred by Zendesk in connection with providing the Consulting Services (“Expenses”). Zendesk will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Zendesk for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Zendesk. 4.4 In addition to any and all Fees, Subscriber will reimburse Zendesk for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations resulting from Subscriber’s request. incurred by Zendesk in connection with providing the Consulting Services (“Expenses”). Zendesk will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Zendesk for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Zendesk.
619 4.5 Any unpaid Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received. 4.5 Any unpaid Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.
620 4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed Consulting Services commencement date are subject to forfeiture of Fees paid and reserved date(s). 4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed Consulting Services commencement date are subject to forfeiture of Fees paid and reserved date(s).
621 5. Relationship of the Parties. Zendesk is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Zendesk at no time will hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Fees, Expenses or other amounts paid by Subscriber to Zendesk hereunder shall not be considered salary for pension or wage tax purposes and neither Zendesk nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law. 5. Relationship of the Parties. Zendesk is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Zendesk at no time will hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Fees, Expenses or other amounts paid by Subscriber to Zendesk hereunder shall not be considered salary for pension or wage tax purposes and neither Zendesk nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
622 6. Warranties, Limitation of Liability. 6. Warranties, Limitation of Liability.
623 6.1 Zendesk hereby represents and warrants that: 6.1 Zendesk hereby represents and warrants that:
624 the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Zendesk and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Zendesk’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Fees paid to Zendesk by Subscriber for the nonconforming portion of the Consulting Services; and the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Zendesk and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Zendesk’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Fees paid to Zendesk by Subscriber for the nonconforming portion of the Consulting Services; and
625 it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services. it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
626 6.2 NOTWITHSTANDING SECTION 10.2 OF THE AGREEMENT, THE ZENDESK GROUP’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY SUBSCRIBER UNDER THE APPLICABLE SOW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 6.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF THE ZENDESK GROUP WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. ZENDESK HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE SUBSCRIBER WITH THE CONSULTING SERVICES PROVIDED UNDER THE AGREEMENT. 6.2 NOTWITHSTANDING SECTION 10.2 OF THE AGREEMENT, THE ZENDESK GROUP’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY SUBSCRIBER UNDER THE APPLICABLE SOW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 6.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF THE ZENDESK GROUP WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. ZENDESK HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE SUBSCRIBER WITH THE CONSULTING SERVICES PROVIDED UNDER THE AGREEMENT.
627 6.3 The Parties hereby agree that: 6.3 The Parties hereby agree that:
628 CUSTOMIZED DELIVERABLES, SUCH AS, BUT NOT LIMITED TO, CUSTOM APPLICATIONS THAT RESIDE WITHIN THE ZENDESK SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO SUBSCRIBER “AS IS” AND ZENDESK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. ZENDESK SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY ZENDESK. ZENDESK DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. ZENDESK EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, ZENDESK EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY ZENDESK OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICES. CUSTOMIZED DELIVERABLES, SUCH AS, BUT NOT LIMITED TO, CUSTOM APPLICATIONS THAT RESIDE WITHIN THE ZENDESK SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO SUBSCRIBER “AS IS” AND ZENDESK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. ZENDESK SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY ZENDESK. ZENDESK DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. ZENDESK EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, ZENDESK EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY ZENDESK OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICES.
629 7. Rights to Deliverables; Ownership. 7. Rights to Deliverables; Ownership.
630 7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Zendesk all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Zendesk a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Zendesk shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Zendesk receives from Subscriber. 7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Zendesk all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Zendesk a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Zendesk shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Zendesk receives from Subscriber.
631 7.2 Without limiting the foregoing, Zendesk and its licensors reserve and retain ownership of all Preexisting Technology, Developed Technology and Generic Components (each as defined below), and Zendesk hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Preexisting Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s). “Preexisting Technology” means all of Zendesk’s inventions (including those of Zendesk’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated intellectual property rights thereto developed by Zendesk and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify Zendesk’s Preexisting Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Zendesk and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support Zendesk’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber’s Confidential Information. 7.2 Without limiting the foregoing, Zendesk and its licensors reserve and retain ownership of all Preexisting Technology, Developed Technology and Generic Components (each as defined below), and Zendesk hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Preexisting Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s). “Preexisting Technology” means all of Zendesk’s inventions (including those of Zendesk’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated intellectual property rights thereto developed by Zendesk and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify Zendesk’s Preexisting Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Zendesk and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support Zendesk’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber’s Confidential Information.
632 Application Developer and API Agreement Application Developer and API Agreement
633 Effective as of November 1, 2016 (the, “Effective Date”), Zendesk, Inc., and its subsidiaries (collectively, “Zendesk”) have updated this Application Developer and API License Agreement (the, “Agreement”). For a prior version of the Application Developer and API License Agreement, click here . Effective as of November 1, 2016 (the, “Effective Date”), Zendesk, Inc., and its subsidiaries (collectively, “Zendesk”) have updated this Application Developer and API License Agreement (the, “Agreement”). For a prior version of the Application Developer and API License Agreement, click here .
634 By accepting this Agreement, either by accessing or using the API, or authorizing or permitting any individual to access or use the API, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Zendesk that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Licensee”, “You”, “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not access nor use the API. By accepting this Agreement, either by accessing or using the API, or authorizing or permitting any individual to access or use the API, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Zendesk that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Licensee”, “You”, “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not access nor use the API.
635 1. DEFINITIONS 1. DEFINITIONS
636 For purposes of this Agreement, capitalized terms shall have the meanings set forth below. Capitalized terms utilized in this Agreement and not defined have the meaning set forth in the Master Subscription Agreement, available here , or such other applicable agreement between Licensee and Zendesk relating to its access to and use of the Services (“Service Agreement”). For purposes of this Agreement, capitalized terms shall have the meanings set forth below. Capitalized terms utilized in this Agreement and not defined have the meaning set forth in the Master Subscription Agreement, available here , or such other applicable agreement between Licensee and Zendesk relating to its access to and use of the Services (“Service Agreement”).
637 API: means an API and any accompanying or related documentation, source code, executable applications and other materials made available by Zendesk, including, without limitation, through its Developer Website . API: means an API and any accompanying or related documentation, source code, executable applications and other materials made available by Zendesk, including, without limitation, through its Developer Website .
638 Applications: mean web or other software services or applications developed by Licensee that utilize or interact with the API and are authorized to be Published pursuant to this Agreement. Applications: mean web or other software services or applications developed by Licensee that utilize or interact with the API and are authorized to be Published pursuant to this Agreement.
639 App Market: means any marketplace or other aggregator or public repository of code or applications. App Market: means any marketplace or other aggregator or public repository of code or applications.
640 Intellectual Property Rights: means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights. Intellectual Property Rights: means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
641 Internal Use: means the use of the API in connection with Licensee’s subscription to a Service for Licensee’s internal business purposes in accordance with the Service Agreement. Internal Use: means the use of the API in connection with Licensee’s subscription to a Service for Licensee’s internal business purposes in accordance with the Service Agreement.
642 Marketplace: means the marketplace or other aggregator or public repository of code or applications provided and operated by Zendesk. Marketplace: means the marketplace or other aggregator or public repository of code or applications provided and operated by Zendesk.
643 Marks: mean Zendesk® and Zendesk’s other product and service names, trademarks, service marks, branding and logos made available for use in connection with the APIs pursuant to this Agreement. Marks: mean Zendesk® and Zendesk’s other product and service names, trademarks, service marks, branding and logos made available for use in connection with the APIs pursuant to this Agreement.
644 Paid Applications: mean any Application published by Licensee in which a Subscriber pays Licensee and/or Zendesk for a license to use, access and/or deploy such Application. Paid Applications: mean any Application published by Licensee in which a Subscriber pays Licensee and/or Zendesk for a license to use, access and/or deploy such Application.
645 Payment Processor: means the third party payment processor that processes fees related to a Paid Application. Payment Processor: means the third party payment processor that processes fees related to a Paid Application.
646 Privacy Policy: means the Privacy Policy found here . Privacy Policy: means the Privacy Policy found here .
647 Publish/Published/Publishing: means the making of any Application available to any Subscriber other than Licensee or for any purpose other than for use by Licensee as a Subscriber for Internal Use. Publish/Published/Publishing: means the making of any Application available to any Subscriber other than Licensee or for any purpose other than for use by Licensee as a Subscriber for Internal Use.
648 Subscriber: means and refers to an individual or an Entity that has agreed to a Service Agreement for use of our Services. Subscriber: means and refers to an individual or an Entity that has agreed to a Service Agreement for use of our Services.
649 2. PURPOSE AND LICENSE 2. PURPOSE AND LICENSE
650 2.1 This Agreement governs Licensee’s rights to use and access the API for the purpose of developing, implementing and Publishing Applications. Licensee’s access to and use of the API for Internal Use is governed by the Service Agreement, including any and all restrictions and policies implemented by Zendesk from time to time with respect to the API as set forth in the Documentation, this Agreement or as otherwise communicated to Licensee (“General API Policies”). 2.1 This Agreement governs Licensee’s rights to use and access the API for the purpose of developing, implementing and Publishing Applications. Licensee’s access to and use of the API for Internal Use is governed by the Service Agreement, including any and all restrictions and policies implemented by Zendesk from time to time with respect to the API as set forth in the Documentation, this Agreement or as otherwise communicated to Licensee (“General API Policies”).
651 2.2 Subject to this Agreement, including the restrictions set forth in Section 3, Zendesk grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term (as defined in Section 13) to: (a) use and make calls to the API to develop, implement and distribute Applications solely for use by Subscribers in connection with the Services; (b) use, reproduce, distribute, and transmit Service Data to the extent necessary to format and display it through the Applications; (c) use and display the Marks only to identify that the Service Data originates from the Services; and (d) market and sell Paid Applications through the Marketplace in accordance with this Agreement. 2.2 Subject to this Agreement, including the restrictions set forth in Section 3, Zendesk grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term (as defined in Section 13) to: (a) use and make calls to the API to develop, implement and distribute Applications solely for use by Subscribers in connection with the Services; (b) use, reproduce, distribute, and transmit Service Data to the extent necessary to format and display it through the Applications; (c) use and display the Marks only to identify that the Service Data originates from the Services; and (d) market and sell Paid Applications through the Marketplace in accordance with this Agreement.
652 2.3 Licensee grants to Zendesk a non-exclusive, worldwide, fully paid-up, royalty-free license, for as long as its Applications are Published to a Marketplace to: (a) market, sell and distribute such Applications; (b) permit others to access, install, purchase and (in the case of downloadable software applications) download such Applications through such App Market; and (c) use, perform, and display such Applications. Licensee further grants to Zendesk a non-exclusive, worldwide, fully paid-up, royalty-free license, during the Term, to use Licensee’s name, Application name(s) and associated logos (collectively, “Licensee Marks”) solely to enable Zendesk to exercise its rights and perform its obligations under this Agreement. Any use of Licensee’s Marks shall be in accordance with Licensee’s reasonable trademark usage policies if such policies are communicated to Zendesk. 2.3 Licensee grants to Zendesk a non-exclusive, worldwide, fully paid-up, royalty-free license, for as long as its Applications are Published to a Marketplace to: (a) market, sell and distribute such Applications; (b) permit others to access, install, purchase and (in the case of downloadable software applications) download such Applications through such App Market; and (c) use, perform, and display such Applications. Licensee further grants to Zendesk a non-exclusive, worldwide, fully paid-up, royalty-free license, during the Term, to use Licensee’s name, Application name(s) and associated logos (collectively, “Licensee Marks”) solely to enable Zendesk to exercise its rights and perform its obligations under this Agreement. Any use of Licensee’s Marks shall be in accordance with Licensee’s reasonable trademark usage policies if such policies are communicated to Zendesk.
653 2.4 Zendesk shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into the Services and/or the API any suggestions, enhancement requests, recommendations or other feedback Zendesk receives from Licensee. 2.4 Zendesk shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into the Services and/or the API any suggestions, enhancement requests, recommendations or other feedback Zendesk receives from Licensee.
654 3. RESTRICTIONS AND RESPONSIBILITIES 3. RESTRICTIONS AND RESPONSIBILITIES
655 The licenses granted in Section 2 of this Agreement are explicitly conditioned on Licensee’s adherence to the following restrictions and compliance with its responsibilities as set forth herein. The licenses granted in Section 2 of this Agreement are explicitly conditioned on Licensee’s adherence to the following restrictions and compliance with its responsibilities as set forth herein.
656 3.1 Licensee must comply with all restrictions set forth in this Agreement, the Master Subscription Agreement , the Marketplace Terms of Use , the Privacy Policy , and the General API Guidelines in all uses of the API and Service Data. Licensee must also comply with all restrictions set forth in this Agreement and the Trademark Usage Guidelines in all uses of Marks. If Zendesk believes, in its sole discretion, that Licensee has violated or attempted to violate any term, condition or the spirit of this Agreement, the license afforded Licensee pursuant to this Agreement may be temporarily or permanently revoked, with or without notice to Licensee. 3.1 Licensee must comply with all restrictions set forth in this Agreement, the Master Subscription Agreement , the Marketplace Terms of Use , the Privacy Policy , and the General API Guidelines in all uses of the API and Service Data. Licensee must also comply with all restrictions set forth in this Agreement and the Trademark Usage Guidelines in all uses of Marks. If Zendesk believes, in its sole discretion, that Licensee has violated or attempted to violate any term, condition or the spirit of this Agreement, the license afforded Licensee pursuant to this Agreement may be temporarily or permanently revoked, with or without notice to Licensee.
657 3.2 In order to use and access the API, Licensee must obtain API credentials (a “Token”) by becoming a Subscriber. Licensee may not share its Token with any third party, shall keep such Token and all Login information secure, and shall use the Token as Licensee’s sole means of accessing the API. 3.2 In order to use and access the API, Licensee must obtain API credentials (a “Token”) by becoming a Subscriber. Licensee may not share its Token with any third party, shall keep such Token and all Login information secure, and shall use the Token as Licensee’s sole means of accessing the API.
658 3.3 Licensee’s Applications shall not substantially replicate products or services offered by Zendesk, including, without limitation, functions or clients on platforms (such as iOS or Android) where Zendesk offers its own client or function. Subject to the preceding sentence and the parties’ other rights and obligations under this Agreement, each party agrees that the other party may develop and publish applications that are similar to or otherwise compete with such party’s applications. Applications may not use or access the API or a Service in order to monitor the availability, performance, or functionality of any of the API or a Service or for any similar benchmarking purposes. 3.3 Licensee’s Applications shall not substantially replicate products or services offered by Zendesk, including, without limitation, functions or clients on platforms (such as iOS or Android) where Zendesk offers its own client or function. Subject to the preceding sentence and the parties’ other rights and obligations under this Agreement, each party agrees that the other party may develop and publish applications that are similar to or otherwise compete with such party’s applications. Applications may not use or access the API or a Service in order to monitor the availability, performance, or functionality of any of the API or a Service or for any similar benchmarking purposes.
659 3.4 Applications shall not, in any manner, display any form of advertising within or connected to any Service Data received by any Subscriber, Agent or End-User. 3.4 Applications shall not, in any manner, display any form of advertising within or connected to any Service Data received by any Subscriber, Agent or End-User.
660 3.5 Licensee is not permitted to Publish any Applications on any App Market that is not Published in identical form on the Marketplace. 3.5 Licensee is not permitted to Publish any Applications on any App Market that is not Published in identical form on the Marketplace.
661 3.6 Licensee shall not, under any circumstances, through Applications or otherwise, repackage or resell the Services, or any part thereof, API or Service Data. Licensee is not permitted to use the API or any Service Data in any manner that does or could potentially undermine the security of the Services, the API, Service Data or any other data or information stored or transmitted using the Services. In addition, Licensee shall not, and shall not attempt to: (a) interfere with, modify or disable any features, functionality or security controls of the Services or the API, (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Service or the API, or (c) reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Services or the API. 3.6 Licensee shall not, under any circumstances, through Applications or otherwise, repackage or resell the Services, or any part thereof, API or Service Data. Licensee is not permitted to use the API or any Service Data in any manner that does or could potentially undermine the security of the Services, the API, Service Data or any other data or information stored or transmitted using the Services. In addition, Licensee shall not, and shall not attempt to: (a) interfere with, modify or disable any features, functionality or security controls of the Services or the API, (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Service or the API, or (c) reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Services or the API.
662 3.7 Licensee acknowledges that Licensee is solely responsible, and that Zendesk has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of Applications. Without limiting the foregoing, Licensee will be solely responsible for (a) the technical installation and operation of its Applications; (b) creating and displaying information and content on, through or within its Applications; (c) ensuring that its Applications do not violate or infringe the Intellectual Property Rights of any third party; (d) ensuring that Applications are not offensive, profane, obscene, libelous or otherwise illegal; (e) ensuring that its Applications do not contain or introduce Malicious Software into a Service, an API, any Service Data or other data stored or transmitted using the Service; and (f) ensuring that its Applications are not designed to or utilized for the purpose of spamming any Zendesk subscribers, Agents or End-Users. 3.7 Licensee acknowledges that Licensee is solely responsible, and that Zendesk has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of Applications. Without limiting the foregoing, Licensee will be solely responsible for (a) the technical installation and operation of its Applications; (b) creating and displaying information and content on, through or within its Applications; (c) ensuring that its Applications do not violate or infringe the Intellectual Property Rights of any third party; (d) ensuring that Applications are not offensive, profane, obscene, libelous or otherwise illegal; (e) ensuring that its Applications do not contain or introduce Malicious Software into a Service, an API, any Service Data or other data stored or transmitted using the Service; and (f) ensuring that its Applications are not designed to or utilized for the purpose of spamming any Zendesk subscribers, Agents or End-Users.
663 3.8 Licensee will respect and comply with the technical and policy-implemented limitations of the API and the restrictions of this Agreement in designing and implementing Applications. Without limiting the foregoing, Licensee shall not violate any explicit rate limitations on calling or otherwise utilizing an API. 3.8 Licensee will respect and comply with the technical and policy-implemented limitations of the API and the restrictions of this Agreement in designing and implementing Applications. Without limiting the foregoing, Licensee shall not violate any explicit rate limitations on calling or otherwise utilizing an API.
664 3.9 Licensee shall not make any modifications to any Service Data, other than as reasonably necessary to modify the formatting of such Service Data in order to display it in a manner appropriate for the pertinent Applications. 3.9 Licensee shall not make any modifications to any Service Data, other than as reasonably necessary to modify the formatting of such Service Data in order to display it in a manner appropriate for the pertinent Applications.
665 3.10 In order to Publish and maintain a Paid Application on the Marketplace, Licensee must (a) submit such Application to Zendesk for approval and listing as a Paid Application; (b) sign up and register for an account with the Payment Processor under the terms communicated to Licensee by the Payment Processor; (c) maintain a relevant terms of service and privacy policy to govern Subscriber’s use of the Paid Application; and (d) provide ongoing commercially reasonable support to users, purchasers and/or Subscribers of the Paid Application. 3.10 In order to Publish and maintain a Paid Application on the Marketplace, Licensee must (a) submit such Application to Zendesk for approval and listing as a Paid Application; (b) sign up and register for an account with the Payment Processor under the terms communicated to Licensee by the Payment Processor; (c) maintain a relevant terms of service and privacy policy to govern Subscriber’s use of the Paid Application; and (d) provide ongoing commercially reasonable support to users, purchasers and/or Subscribers of the Paid Application.
666 3.11 Licensee acknowledges and agrees that Zendesk may, at its sole discretion, initiate a refund related to any Purchase Fee (defined below) paid to Licensee by Subscriber in connection with a Subscriber’s purchase of a Paid Application in the event that Zendesk determines such a refund is appropriate. In addition, Licensee acknowledges and agrees that any such refund shall be the exclusive financial responsibility of Licensee. Without limiting any other rights afforded Zendesk with respect to such refund, the parties acknowledge and agree that any such refund may be processed through Payment Processor and taken out of Licensee’s Payment Processor account and returned to Subscriber. Licensee agrees that Zendesk shall not be responsible for and will not issue any refunds out of its funds related to Licensee’s Applications for any reason, including Licensee’s failure to support the Application. 3.11 Licensee acknowledges and agrees that Zendesk may, at its sole discretion, initiate a refund related to any Purchase Fee (defined below) paid to Licensee by Subscriber in connection with a Subscriber’s purchase of a Paid Application in the event that Zendesk determines such a refund is appropriate. In addition, Licensee acknowledges and agrees that any such refund shall be the exclusive financial responsibility of Licensee. Without limiting any other rights afforded Zendesk with respect to such refund, the parties acknowledge and agree that any such refund may be processed through Payment Processor and taken out of Licensee’s Payment Processor account and returned to Subscriber. Licensee agrees that Zendesk shall not be responsible for and will not issue any refunds out of its funds related to Licensee’s Applications for any reason, including Licensee’s failure to support the Application.
667 4. REPRESENTATIONS, WARRANTIES AND COVENANTS 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
668 4.1 To the extent Licensee’s Applications transmit Service Data outside a Service, Licensee represents and warrants that Licensee has notified all users of such Applications that their Service Data will be transmitted outside the Service and that Zendesk is not responsible for the privacy, security or integrity of such Service Data. Licensee further represents and warrants that to the extent Licensee’s Applications store, process or transmit Service Data, neither Licensee nor Licensee’s Application will, without appropriate prior user consent or except to the extent required by applicable law (a) modify the content of Service Data in a manner that adversely affects the integrity of Service Data; (b) disclose Service Data to any third party; or (c) use Service Data for any purpose other than providing the Application functionality to users of such Application. Licensee shall maintain and handle all Service Data in accordance with privacy and security measures reasonably adequate to preserve the confidentiality and security of all Service Data and all applicable privacy laws and regulations, and in no event less protective than the measures and policies set forth in the Privacy Policy . 4.1 To the extent Licensee’s Applications transmit Service Data outside a Service, Licensee represents and warrants that Licensee has notified all users of such Applications that their Service Data will be transmitted outside the Service and that Zendesk is not responsible for the privacy, security or integrity of such Service Data. Licensee further represents and warrants that to the extent Licensee’s Applications store, process or transmit Service Data, neither Licensee nor Licensee’s Application will, without appropriate prior user consent or except to the extent required by applicable law (a) modify the content of Service Data in a manner that adversely affects the integrity of Service Data; (b) disclose Service Data to any third party; or (c) use Service Data for any purpose other than providing the Application functionality to users of such Application. Licensee shall maintain and handle all Service Data in accordance with privacy and security measures reasonably adequate to preserve the confidentiality and security of all Service Data and all applicable privacy laws and regulations, and in no event less protective than the measures and policies set forth in the Privacy Policy .
669 4.2 Licensee represents, warrants and covenants that (a) its Applications and Licensee Marks, the use of such Applications by its users, and the activities with respect to such Applications and Licensee Marks undertaken by Zendesk in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party; (b) Licensee will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its Applications; (c) its Applications do not and will not contain or introduce any Malicious Software into the Service, the API, any Service Data, or other data stored or transmitted using the Service; (d) its Applications are not designed to or utilized for the purpose of spamming any Subscribers, Agents or End-Users; (e) it has all right, power and authority to grant the licenses granted to Zendesk herein; and (f) it acknowledges Zendesk’s right to charge transaction and/or listing fees as provided in Section 8 herein. 4.2 Licensee represents, warrants and covenants that (a) its Applications and Licensee Marks, the use of such Applications by its users, and the activities with respect to such Applications and Licensee Marks undertaken by Zendesk in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party; (b) Licensee will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its Applications; (c) its Applications do not and will not contain or introduce any Malicious Software into the Service, the API, any Service Data, or other data stored or transmitted using the Service; (d) its Applications are not designed to or utilized for the purpose of spamming any Subscribers, Agents or End-Users; (e) it has all right, power and authority to grant the licenses granted to Zendesk herein; and (f) it acknowledges Zendesk’s right to charge transaction and/or listing fees as provided in Section 8 herein.
670 4.3 Licensee represents, warrants and covenants that it will include the mandatory terms of service provisions listed in Section 4.4 below (“Mandatory Service Terms”) in the terms of service (“App Terms of Service”) that govern use of its Apps by Subscribers. Such Mandatory Service Terms are a minimum set of provisions and Licensee may have more exhaustive App Terms of Service. Licensee may change the term references to match the terms used in its App Terms of Service. 4.3 Licensee represents, warrants and covenants that it will include the mandatory terms of service provisions listed in Section 4.4 below (“Mandatory Service Terms”) in the terms of service (“App Terms of Service”) that govern use of its Apps by Subscribers. Such Mandatory Service Terms are a minimum set of provisions and Licensee may have more exhaustive App Terms of Service. Licensee may change the term references to match the terms used in its App Terms of Service.
671 4.4 Mandatory Service Terms: 4.4 Mandatory Service Terms:
672 (i) The Licensee is the licensor of the Application and Zendesk is not a party to the App Terms of Service. (i) The Licensee is the licensor of the Application and Zendesk is not a party to the App Terms of Service.
673 (ii) Except as otherwise limited by any App Terms of Service imposed or required by the Licensee, Licensee grants Subscriber a perpetual, worldwide, non-exclusive, non-transferable and non-sublicensable license to access, deploy, use and integrate the Application in connection with Subscriber’s active Account for a Service. (ii) Except as otherwise limited by any App Terms of Service imposed or required by the Licensee, Licensee grants Subscriber a perpetual, worldwide, non-exclusive, non-transferable and non-sublicensable license to access, deploy, use and integrate the Application in connection with Subscriber’s active Account for a Service.
674 (iii) Any information that Licensee collects, stores and processes from Subscriber or the systems Subscriber uses to access or deploy the Application, including Service Data, will be subject to the App Terms of Service, privacy notice, or similar terms that the Licensor provides to Subscriber, and will not be subject to the Privacy Policy. (iii) Any information that Licensee collects, stores and processes from Subscriber or the systems Subscriber uses to access or deploy the Application, including Service Data, will be subject to the App Terms of Service, privacy notice, or similar terms that the Licensor provides to Subscriber, and will not be subject to the Privacy Policy.
675 (iv) Subscriber may not modify, reverse engineer, decompile or disassemble the Application in whole or in part, or create any derivative works from or sublicense any rights in the Application, unless otherwise expressly authorized in writing by Licensor. (iv) Subscriber may not modify, reverse engineer, decompile or disassemble the Application in whole or in part, or create any derivative works from or sublicense any rights in the Application, unless otherwise expressly authorized in writing by Licensor.
676 (v) Each of Subscriber and the Licensor shall maintain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “IP Rights”). The rights granted to Subscriber to use the Application under these App Terms of Service do not convey any additional rights in the Application or Licensor Service, or in any IP Rights associated therewith. Subject only to limited rights to access and use the Application as expressly stated herein, all rights, title and interest in and to the Application and all hardware, software and other components of or used to provide the Application, including all related IP Rights, will remain with and belong exclusively to the Licensor. Licensor shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Application or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from Subscriber. (v) Each of Subscriber and the Licensor shall maintain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “IP Rights”). The rights granted to Subscriber to use the Application under these App Terms of Service do not convey any additional rights in the Application or Licensor Service, or in any IP Rights associated therewith. Subject only to limited rights to access and use the Application as expressly stated herein, all rights, title and interest in and to the Application and all hardware, software and other components of or used to provide the Application, including all related IP Rights, will remain with and belong exclusively to the Licensor. Licensor shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Application or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from Subscriber.
677 -End of Mandatory Service Terms- -End of Mandatory Service Terms-
678 5. MODIFICATIONS 5. MODIFICATIONS
679 Licensee acknowledges and agrees that Zendesk may modify this Agreement, the Services, the API, the General API Policies, the Service Agreement, and the Privacy Policy, from time to time (a “Modification”). Licensee will be notified of a Modification to this Agreement, the Zendesk API or the General API Policies through notifications or posts on the Zendesk Developer Website . All other Modifications shall be communicated through the Services, Zendesk’s Sites, or any other website owned and operated by Zendesk or through a form of direct communication from Zendesk to Licensee. Licensee further acknowledges and agrees that such Modifications may be implemented at any time and without any notice to Licensee. Licensee shall, within thirty (30) days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) (the “Conformance Period”) comply with such Modification(s) by implementing and using the most current version of the API and making any changes to Applications that may be required as a result of such Modification(s). Licensee acknowledges that a Modification may have an adverse effect on Applications, including but not limited to changing the manner in which Applications communicate with the API and display or transmit Service Data. Zendesk shall have no liability of any kind to Licensee or any user of Licensee’s Applications with respect to such Modifications or any adverse effects resulting from such Modifications. Licensee’s continued access to or use of the Services or API following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue. Licensee acknowledges and agrees that Zendesk may modify this Agreement, the Services, the API, the General API Policies, the Service Agreement, and the Privacy Policy, from time to time (a “Modification”). Licensee will be notified of a Modification to this Agreement, the Zendesk API or the General API Policies through notifications or posts on the Zendesk Developer Website . All other Modifications shall be communicated through the Services, Zendesk’s Sites, or any other website owned and operated by Zendesk or through a form of direct communication from Zendesk to Licensee. Licensee further acknowledges and agrees that such Modifications may be implemented at any time and without any notice to Licensee. Licensee shall, within thirty (30) days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) (the “Conformance Period”) comply with such Modification(s) by implementing and using the most current version of the API and making any changes to Applications that may be required as a result of such Modification(s). Licensee acknowledges that a Modification may have an adverse effect on Applications, including but not limited to changing the manner in which Applications communicate with the API and display or transmit Service Data. Zendesk shall have no liability of any kind to Licensee or any user of Licensee’s Applications with respect to such Modifications or any adverse effects resulting from such Modifications. Licensee’s continued access to or use of the Services or API following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue.
680 6. OWNERSHIP 6. OWNERSHIP
681 Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Zendesk any of Licensee’s Intellectual Property Rights in its Applications or Licensee’s Marks or other technology, and nothing in this Agreement transfers or assigns to Licensee any of Zendesk’s Intellectual Property Rights in the Services, the API, the Marks, or Zendesk’s other technology or the respective Intellectual Property Rights in any Service Data of Zendesk or its Subscribers, Agents or End-Users. Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Zendesk any of Licensee’s Intellectual Property Rights in its Applications or Licensee’s Marks or other technology, and nothing in this Agreement transfers or assigns to Licensee any of Zendesk’s Intellectual Property Rights in the Services, the API, the Marks, or Zendesk’s other technology or the respective Intellectual Property Rights in any Service Data of Zendesk or its Subscribers, Agents or End-Users.
682 7. SUPPORT 7. SUPPORT
683 This Agreement does not entitle Licensee to any support for the Services or the API, unless Licensee makes separate arrangements with Zendesk for such support. Licensee is solely responsible for providing all support and technical assistance to End-Users of its Applications and Subscribers who access, deploy and/or purchase its Applications. Licensee acknowledges and agrees that Zendesk has no obligation to provide support or technical assistance to the users of Applications and Licensee shall not represent to any such users that Zendesk is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to users of its Applications. This Agreement does not entitle Licensee to any support for the Services or the API, unless Licensee makes separate arrangements with Zendesk for such support. Licensee is solely responsible for providing all support and technical assistance to End-Users of its Applications and Subscribers who access, deploy and/or purchase its Applications. Licensee acknowledges and agrees that Zendesk has no obligation to provide support or technical assistance to the users of Applications and Licensee shall not represent to any such users that Zendesk is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to users of its Applications.
684 8. FEES 8. FEES
685 If Licensee submits a Paid Application, such application is approved by Zendesk, and Licensee follows the required registration and listing steps contained herein and as otherwise communicated to Licensee, then Licensee may list the Paid Application on the Marketplace and charge Subscribers to purchase the Paid Application. Fees collected from the sale of Licensee’s Paid Application (“Purchase Fees”) must be processed through the Payment Processor account Licensee registered for in connection with listing the Paid Application. Purchase Fees shall be processed from the Subscriber to Licensee through the Payment Processor. Purchase Fees shall be transferred to Licensee’s Payment Processor account pursuant to the terms of the agreement entered into between Licensee and Payment Processor. Zendesk reserves the right to charge fees to Licensee related to any aspect of the Marketplace at its sole discretion either as indicated to Licensee at time of listing of the Paid Application or upon ten (10) days’ notice to Licensee. Continued listing of the Paid Application on the Marketplace after notice of Zendesk’s collection of such fees, shall be deemed consent to the imposition and collection of such charges. If Licensee submits a Paid Application, such application is approved by Zendesk, and Licensee follows the required registration and listing steps contained herein and as otherwise communicated to Licensee, then Licensee may list the Paid Application on the Marketplace and charge Subscribers to purchase the Paid Application. Fees collected from the sale of Licensee’s Paid Application (“Purchase Fees”) must be processed through the Payment Processor account Licensee registered for in connection with listing the Paid Application. Purchase Fees shall be processed from the Subscriber to Licensee through the Payment Processor. Purchase Fees shall be transferred to Licensee’s Payment Processor account pursuant to the terms of the agreement entered into between Licensee and Payment Processor. Zendesk reserves the right to charge fees to Licensee related to any aspect of the Marketplace at its sole discretion either as indicated to Licensee at time of listing of the Paid Application or upon ten (10) days’ notice to Licensee. Continued listing of the Paid Application on the Marketplace after notice of Zendesk’s collection of such fees, shall be deemed consent to the imposition and collection of such charges.
686 9. CONFIDENTIALITY 9. CONFIDENTIALITY
687 Licensee may from time to time, gain access to Confidential Information. Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein, Licensee may not disclose Confidential Information to a third party without the prior express consent of Zendesk, provided in writing or by email. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care. Licensee may from time to time, gain access to Confidential Information. Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein, Licensee may not disclose Confidential Information to a third party without the prior express consent of Zendesk, provided in writing or by email. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
688 10. DISCLAIMER OF WARRANTIES 10. DISCLAIMER OF WARRANTIES
689 ALL ASPECTS OF THE SERVICES AND THE API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND ZENDESK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT ZENDESK DOES NOT WARRANT THAT THE SERVICE OR API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM ZENDESK OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL ASPECTS OF THE SERVICES AND THE API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND ZENDESK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT ZENDESK DOES NOT WARRANT THAT THE SERVICE OR API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM ZENDESK OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
690 11. LIMITATION OF LIABILITY 11. LIMITATION OF LIABILITY
691 11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE API OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. 11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE API OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
692 11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ZENDESK’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM. 11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ZENDESK’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.
693 11.3 Some jurisdictions 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 Licensee. IN THESE JURISDICTIONS, ZENDESK’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. 11.3 Some jurisdictions 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 Licensee. IN THESE JURISDICTIONS, ZENDESK’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
694 12. INDEMNIFICATION 12. INDEMNIFICATION
695 Licensee will indemnify and hold Zendesk harmless against any claim brought by a third party against Zendesk arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by Licensee or any matter which Licensee has expressly agreed to be responsible pursuant to this Agreement. Licensee will indemnify and hold Zendesk harmless against any claim brought by a third party against Zendesk arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by Licensee or any matter which Licensee has expressly agreed to be responsible pursuant to this Agreement.
696 13. TERM AND TERMINATION 13. TERM AND TERMINATION
697 This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 13 (the, “Term”). Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted to Licensee hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to Zendesk, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Licensee’s possession, and shall certify to Zendesk that such actions have occurred. Sections 3, 4, 6, 8-16 and 18 shall survive termination of this Agreement. This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 13 (the, “Term”). Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted to Licensee hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to Zendesk, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Licensee’s possession, and shall certify to Zendesk that such actions have occurred. Sections 3, 4, 6, 8-16 and 18 shall survive termination of this Agreement.
698 14. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS 14. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
699 14.1 Licensee may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Licensee’s rights under this Agreement or delegate performance of Licensee’s duties under this Agreement without Zendesk’s prior consent, which consent will not be unreasonably withheld. Zendesk may, without Licensee’s consent, assign this Agreement to any Affiliate or in connection with any merger or change of control of Zendesk or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. 14.1 Licensee may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Licensee’s rights under this Agreement or delegate performance of Licensee’s duties under this Agreement without Zendesk’s prior consent, which consent will not be unreasonably withheld. Zendesk may, without Licensee’s consent, assign this Agreement to any Affiliate or in connection with any merger or change of control of Zendesk or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
700 14.2 This Agreement, together with the Service Agreement related to Licensee’s subscription to the Services by and between Licensee and Zendesk, the Privacy Policy and the Marketplace User Agreement , constitute the entire agreement among the parties with respect to the subject matter of this Agreement. Either party’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement. 14.2 This Agreement, together with the Service Agreement related to Licensee’s subscription to the Services by and between Licensee and Zendesk, the Privacy Policy and the Marketplace User Agreement , constitute the entire agreement among the parties with respect to the subject matter of this Agreement. Either party’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
701 15. SEVERABILITY 15. SEVERABILITY
702 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
703 16. RELATIONSHIP OF THE PARTIES 16. RELATIONSHIP OF THE PARTIES
704 The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
705 17. NOTICE 17. NOTICE
706 All notices to be provided by Zendesk to Licensee under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Licensee to Zendesk; or (b) electronic mail to the electronic mail address provided for the Account owner related to Your subscription to the Service. Licensee must give notice to Zendesk in writing by Courier or U.S. Mail to the following address: Zendesk, Inc., Attn: Legal Department, 1019 Market St., San Francisco, CA 94103 USA. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above. All notices to be provided by Zendesk to Licensee under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Licensee to Zendesk; or (b) electronic mail to the electronic mail address provided for the Account owner related to Your subscription to the Service. Licensee must give notice to Zendesk in writing by Courier or U.S. Mail to the following address: Zendesk, Inc., Attn: Legal Department, 1019 Market St., San Francisco, CA 94103 USA. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
707 18. GOVERNING LAW 18. GOVERNING LAW
708 This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users.
709 Referral Partner Agreement Referral Partner Agreement
710 (Cover Page) (Cover Page)
711 This Partner Agreement, consisting of this Cover Page and the attached Business Terms (collectively, this “Agreement”), is made and entered into by and between Zendesk and Partner (each, as defined below). The Agreement shall become binding once Partner clicks through the Agreement in the manner provided by Zendesk (the “Effective Date”). Zendesk and Partner are sometimes referred to as a "Party", and together as the "Parties". This Partner Agreement, consisting of this Cover Page and the attached Business Terms (collectively, this “Agreement”), is made and entered into by and between Zendesk and Partner (each, as defined below). The Agreement shall become binding once Partner clicks through the Agreement in the manner provided by Zendesk (the “Effective Date”). Zendesk and Partner are sometimes referred to as a "Party", and together as the "Parties".
712 As used in this Agreement, the following terms shall have the meanings set forth below: As used in this Agreement, the following terms shall have the meanings set forth below:
713 Zendesk: Zendesk:
714 Partner: Partner:
715 “Zendesk” means Zendesk, Inc., a U.S., State of Delaware company with corporate offices in San Francisco, California “Zendesk” means Zendesk, Inc., a U.S., State of Delaware company with corporate offices in San Francisco, California
716 “Partner” or “You” means the person or company (including Company Name and other information) detailed in the Form submitted to Zendesk “Partner” or “You” means the person or company (including Company Name and other information) detailed in the Form submitted to Zendesk
717 Zendesk Headquarters and Notice Address: Zendesk Headquarters and Notice Address:
718 Partner Information: Partner Information:
719 1019 Market Street, San Francisco, CA 94103 1019 Market Street, San Francisco, CA 94103
720 For legal notices, provide copies to: For legal notices, provide copies to:
721 Zendesk, Inc. – Legal Department; Zendesk, Inc. – Legal Department;
722 legal@zendesk.com legal@zendesk.com
723 “Partner Information” means the information provided by Partner in the Form. “Partner Information” means the information provided by Partner in the Form.
724 TERM: “Term” shall mean the “Initial Term” and all “Renewal Term(s)” thereafter (each, as defined in Section 4 of the Business Terms). TERM: “Term” shall mean the “Initial Term” and all “Renewal Term(s)” thereafter (each, as defined in Section 4 of the Business Terms).
725
726 BUSINESS TERMS BUSINESS TERMS
727
728 Background Background
729 Zendesk is the owner and operator of Zendesk®, a unique customer relations platform and service that promotes effective, interactive engagement among Zendesk customers and their customer base (the “Zendesk Service”). Partner wishes to promote, market and advertise the Zendesk Service to potential Zendesk customers (“Referrals”) through its website(s) and other marketing channels, in accordance with Zendesk’s Partner Program (“Program”) detailed in this Agreement. Zendesk is the owner and operator of Zendesk®, a unique customer relations platform and service that promotes effective, interactive engagement among Zendesk customers and their customer base (the “Zendesk Service”). Partner wishes to promote, market and advertise the Zendesk Service to potential Zendesk customers (“Referrals”) through its website(s) and other marketing channels, in accordance with Zendesk’s Partner Program (“Program”) detailed in this Agreement.
730 Agreement Agreement
731 The Parties agree as follows: The Parties agree as follows:
732
733 LICENSE. LICENSE.
734 Subject to this Agreement and its terms, Zendesk hereby grants to Partner a free, non-exclusive, non-transferable and revocable license (“License”) to market and distribute the Zendesk Service to Referrals, and to use the Zendesk trademarks, logos and URLs provided by Zendesk and listed in Exhibit A (“Licensed Marks,” as may be amended by Zendesk from time to time), and associated materials, language or code for the sole purpose of promoting the Zendesk Service (collectively, “Marketing Materials”). Subject to this Agreement and its terms, Zendesk hereby grants to Partner a free, non-exclusive, non-transferable and revocable license (“License”) to market and distribute the Zendesk Service to Referrals, and to use the Zendesk trademarks, logos and URLs provided by Zendesk and listed in Exhibit A (“Licensed Marks,” as may be amended by Zendesk from time to time), and associated materials, language or code for the sole purpose of promoting the Zendesk Service (collectively, “Marketing Materials”).
735 The license to use the Licensed Marks granted herein is subject to Zendesk’s Trademark Usage Guidelines (“Guidelines”) (which can be found at https://www.zendesk.com/company/trademark-property/#trademarks ), incorporated here by reference, as updated from time to time by Zendesk at its sole discretion. Zendesk may revoke this license at any time by giving Partner a written notice (including via email). A list of certain Zendesk trademarks and logos (“Zendesk Marks”) is included in the Guidelines. The license to use the Licensed Marks granted herein is subject to Zendesk’s Trademark Usage Guidelines (“Guidelines”) (which can be found at https://www.zendesk.com/company/trademark-property/#trademarks ), incorporated here by reference, as updated from time to time by Zendesk at its sole discretion. Zendesk may revoke this license at any time by giving Partner a written notice (including via email). A list of certain Zendesk trademarks and logos (“Zendesk Marks”) is included in the Guidelines.
736
737 PROGRAM COMMITMENTS. PROGRAM COMMITMENTS.
738 The Program.To participate in the Program, Partner must complete the online application for participation in the Program found on Zendesk’s website (“Site”) and enter this Agreement. Zendesk may accept or reject any application at its sole discretion. The Program.To participate in the Program, Partner must complete the online application for participation in the Program found on Zendesk’s website (“Site”) and enter this Agreement. Zendesk may accept or reject any application at its sole discretion.
739 Legal Agreements. As part of its participation in the Program and in acting as Zendesk’s Partner, Partner hereby agrees and consents to the terms of this Agreement and the Program, the Guidelines, and any other requests and rules set by Zendesk from time to time, in its reasonable discretion, in connection with Partner’s ongoing participation in the Program and promotion of the Zendesk Service to Referrals. In all its activities under this Agreement, and specifically such activities relating to Partner’s promotion of the Zendesk Service, Partner shall cooperate with Zendesk and act in good faith. In entering this Agreement, Partner further recognizes and accepts the terms and rules set in Zendesk’s Master Subscription Agreement (“Master Agreement,” found here ) and Zendesk’s Privacy Policy (“Privacy Policy,” found here ), as applicable to Zendesk’s provision of the Zendesk Service to Referrals, and particularly regarding Partner’s adherence to the Privacy Policy in all matters involving privacy of Referrals’ information. Legal Agreements. As part of its participation in the Program and in acting as Zendesk’s Partner, Partner hereby agrees and consents to the terms of this Agreement and the Program, the Guidelines, and any other requests and rules set by Zendesk from time to time, in its reasonable discretion, in connection with Partner’s ongoing participation in the Program and promotion of the Zendesk Service to Referrals. In all its activities under this Agreement, and specifically such activities relating to Partner’s promotion of the Zendesk Service, Partner shall cooperate with Zendesk and act in good faith. In entering this Agreement, Partner further recognizes and accepts the terms and rules set in Zendesk’s Master Subscription Agreement (“Master Agreement,” found here ) and Zendesk’s Privacy Policy (“Privacy Policy,” found here ), as applicable to Zendesk’s provision of the Zendesk Service to Referrals, and particularly regarding Partner’s adherence to the Privacy Policy in all matters involving privacy of Referrals’ information.
740 Promotion, Referral Activities: Partner agrees to engage in continued, active promotion of the Zendesk Service in various marketing channels using the Licensed Marks and Marketing Materials, and to do so in compliance with the terms of this Agreement. Promotion, Referral Activities: Partner agrees to engage in continued, active promotion of the Zendesk Service in various marketing channels using the Licensed Marks and Marketing Materials, and to do so in compliance with the terms of this Agreement.
741 Prohibited Activities, Partner agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Zendesk’s sole discretion. Partner agrees not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming”) in promoting the Zendesk Service, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement. Prohibited Activities, Partner agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Zendesk’s sole discretion. Partner agrees not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming”) in promoting the Zendesk Service, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.
742 Permissible Use of Zendesk Marks. Permissible Use of Zendesk Marks.
743 Partner expressly agrees to comply with all the terms herein (particularly Section 5.3) in using the Licensed Marks and in creating Marketing Materials. Partner expressly agrees to comply with all the terms herein (particularly Section 5.3) in using the Licensed Marks and in creating Marketing Materials.
744 Through the Guidelines and otherwise, Zendesk shall provide specifications and other instructions from time to time as to Partner’s permissible use of the Licensed Marks in creating Marketing Materials and promoting the Zendesk Service. Partner further agrees to comply with all such specifications and instructions. Through the Guidelines and otherwise, Zendesk shall provide specifications and other instructions from time to time as to Partner’s permissible use of the Licensed Marks in creating Marketing Materials and promoting the Zendesk Service. Partner further agrees to comply with all such specifications and instructions.
745 Partner shall ensure that all Licensed Marks appearing on its Marketing Materials are in the form approved by Zendesk in the Guidelines or otherwise, shall not modify any Zendesk Marks or otherwise substantially modify other Marketing Materials contrary to reasonable instructions provided by Zendesk, and shall further comply with reasonable instructions from Zendesk as to the form, content and display of Marketing Materials. Upon termination of this Agreement for any reason whatsoever, or upon written request by Zendesk, the license granted herein shall expire and Partner shall immediately cease all its activities under this Agreement. Partner shall ensure that all Licensed Marks appearing on its Marketing Materials are in the form approved by Zendesk in the Guidelines or otherwise, shall not modify any Zendesk Marks or otherwise substantially modify other Marketing Materials contrary to reasonable instructions provided by Zendesk, and shall further comply with reasonable instructions from Zendesk as to the form, content and display of Marketing Materials. Upon termination of this Agreement for any reason whatsoever, or upon written request by Zendesk, the license granted herein shall expire and Partner shall immediately cease all its activities under this Agreement.
746 Liabilities. Partner shall be solely responsible for its operations in acting under this Agreement, including, without limitation, the legality of Partner’s operations and materials, created and used in connection with this Agreement. Except for a claim alleging that a Zendesk Mark violates a third party’s trademark rights, Zendesk is not responsible for the development, operation or content of Partner’s Marketing Materials and Partner agrees to defend, indemnify and hold Zendesk harmless against any and all claims, actions, causes of action, damages, or expenses (including attorney fees) relating to the development, operation, content and maintenance of Partner’s Marketing Materials. Liabilities. Partner shall be solely responsible for its operations in acting under this Agreement, including, without limitation, the legality of Partner’s operations and materials, created and used in connection with this Agreement. Except for a claim alleging that a Zendesk Mark violates a third party’s trademark rights, Zendesk is not responsible for the development, operation or content of Partner’s Marketing Materials and Partner agrees to defend, indemnify and hold Zendesk harmless against any and all claims, actions, causes of action, damages, or expenses (including attorney fees) relating to the development, operation, content and maintenance of Partner’s Marketing Materials.
747 Customer Relations. During and after the Term, Zendesk shall be the exclusive owner of all relations created via Partner among Zendesk and Referrals with respect to the Zendesk Service, including any and all information identifying Referrals who contract with Zendesk for the use of the Zendesk Service. The Master Agreement, Privacy Policy, and Zendesk’s rules and procedures for the Zendesk Service will apply to these Referrals and may be changed by Zendesk without prior notice to Partner, and Partner agrees to convey to Referrals the nature of their relations with Zendesk under the Master Agreement. Customer Relations. During and after the Term, Zendesk shall be the exclusive owner of all relations created via Partner among Zendesk and Referrals with respect to the Zendesk Service, including any and all information identifying Referrals who contract with Zendesk for the use of the Zendesk Service. The Master Agreement, Privacy Policy, and Zendesk’s rules and procedures for the Zendesk Service will apply to these Referrals and may be changed by Zendesk without prior notice to Partner, and Partner agrees to convey to Referrals the nature of their relations with Zendesk under the Master Agreement.
748
749 QUALIFIED REFERRALS, COMMISSIONS. QUALIFIED REFERRALS, COMMISSIONS.
750 “Qualified Referrals” mean Referrals (a) referred by Partner to Zendesk and who complete the sign-up procedure in accordance with the procedure described in Section 3.2 below; (b) of whom Zendesk has no record in connection with the Zendesk Service, or who are not, at the time referred to Zendesk by Partner, in any contractual relations or ongoing negotiations with Zendesk in connection with the Zendesk Service; (c) who accept the Master Agreement and acquire within one hundred (100) days of being referred to Zendesk by Partner, at a Referral’s own discretion and without receiving any monetary or other incentive from Partner, at least monthly subscriptions of any of the following Zendesk Service plan bundles: (i) 2 agents using the Enterprise Plan, (ii) 4 agents using the Professional Plan, or (iii) 8 agents using the Team Plan (each, as described in the Site at https://www.zendesk.com/product/pricing ); and (d) who are not rejected by Zendesk, and make at least one payment to receive the Zendesk Service. All Referrals will be deemed rejected by Zendesk if they do not become a Qualified Referral within one hundred (100) days of first being submitted to Zendesk by Partner. On a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend the one hundred (100) day time limit for a particular Referral. “Qualified Referrals” mean Referrals (a) referred by Partner to Zendesk and who complete the sign-up procedure in accordance with the procedure described in Section 3.2 below; (b) of whom Zendesk has no record in connection with the Zendesk Service, or who are not, at the time referred to Zendesk by Partner, in any contractual relations or ongoing negotiations with Zendesk in connection with the Zendesk Service; (c) who accept the Master Agreement and acquire within one hundred (100) days of being referred to Zendesk by Partner, at a Referral’s own discretion and without receiving any monetary or other incentive from Partner, at least monthly subscriptions of any of the following Zendesk Service plan bundles: (i) 2 agents using the Enterprise Plan, (ii) 4 agents using the Professional Plan, or (iii) 8 agents using the Team Plan (each, as described in the Site at https://www.zendesk.com/product/pricing ); and (d) who are not rejected by Zendesk, and make at least one payment to receive the Zendesk Service. All Referrals will be deemed rejected by Zendesk if they do not become a Qualified Referral within one hundred (100) days of first being submitted to Zendesk by Partner. On a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend the one hundred (100) day time limit for a particular Referral.
751 Referral Procedure. Each Referral shall be referred to Zendesk by Partner through an online form provided by Zendesk to Partner, which Partner shall fully complete and submit to Zendesk (“Referral Form”). Upon receiving each Referral Form, Zendesk shall send an email to the Referral’s email address indicated in the Referral Form, detailing the steps to be taken towards registration to receive the Zendesk Service and become a Qualified Referral. Zendesk shall be responsible for the sales process to all Referrals, subject to the Parties’ continued good-faith cooperation in promoting the sales process to Referral. Referral Procedure. Each Referral shall be referred to Zendesk by Partner through an online form provided by Zendesk to Partner, which Partner shall fully complete and submit to Zendesk (“Referral Form”). Upon receiving each Referral Form, Zendesk shall send an email to the Referral’s email address indicated in the Referral Form, detailing the steps to be taken towards registration to receive the Zendesk Service and become a Qualified Referral. Zendesk shall be responsible for the sales process to all Referrals, subject to the Parties’ continued good-faith cooperation in promoting the sales process to Referral.
752 Commissions. Commissions.
753 Responsibilities. Zendesk shall collect all fees from Referrals for the Zendesk Service directly from Referrals (“Subscription Fees”). Responsibilities. Zendesk shall collect all fees from Referrals for the Zendesk Service directly from Referrals (“Subscription Fees”).
754 Referral Fees. Upon a Referral becoming a Qualified Referral, Zendesk shall pay Partner referral fees in arrears at the applicable percentage of the fees listed on Exhibit B (“Referral Fee Percentage”) (excluding any discounts) payable by the Qualified Referral pursuant to their initial order under the Master Agreement for the first year of the associated subscription (“Referral Fees”). For initial orders that have subscription terms in excess of one (1) year, Referral Fees payable with respect to the first year shall be determined proportionately to the total Subscription Fees payable pursuant to the initial order. For clarity, Partner shall only receive Referral Fees on a Qualified Referral’s initial order and Referral Fees will accrue and be payable for, at most, one year from the date of becoming a Qualified Referral. Such Referral Fees shall become payable and be paid to Partner within thirty (30) days of the end of the calendar quarter in which Subscription Fees attributed to such Qualified Referrals are paid to Zendesk. If a Qualified Referral terminates the Service prior to one year after becoming a Qualified Referral, Partner will only receive a pro-rata portion of the Referral Fees for the year in proportion to the Subscription Fees paid by Qualified Referral to Zendesk. The Referral Fee Percentage for a Qualified Referral shall be calculated at time of payment based on projected annual revenue rate (“ARR”) of Qualified Referral Subscription Fees. ARR and the corresponding Referral Fee Percentage shall be calculated on a per Qualified Referral basis with the Referral Fee Percentage set in accordance with the ARR of the Qualified Referral. For each Qualified Referral, Referral Fees to Partner shall be capped at the amounts listed on Exhibit B for the applicable Referral Fee Percentages (“Maximum Payment”). Referral Fees. Upon a Referral becoming a Qualified Referral, Zendesk shall pay Partner referral fees in arrears at the applicable percentage of the fees listed on Exhibit B (“Referral Fee Percentage”) (excluding any discounts) payable by the Qualified Referral pursuant to their initial order under the Master Agreement for the first year of the associated subscription (“Referral Fees”). For initial orders that have subscription terms in excess of one (1) year, Referral Fees payable with respect to the first year shall be determined proportionately to the total Subscription Fees payable pursuant to the initial order. For clarity, Partner shall only receive Referral Fees on a Qualified Referral’s initial order and Referral Fees will accrue and be payable for, at most, one year from the date of becoming a Qualified Referral. Such Referral Fees shall become payable and be paid to Partner within thirty (30) days of the end of the calendar quarter in which Subscription Fees attributed to such Qualified Referrals are paid to Zendesk. If a Qualified Referral terminates the Service prior to one year after becoming a Qualified Referral, Partner will only receive a pro-rata portion of the Referral Fees for the year in proportion to the Subscription Fees paid by Qualified Referral to Zendesk. The Referral Fee Percentage for a Qualified Referral shall be calculated at time of payment based on projected annual revenue rate (“ARR”) of Qualified Referral Subscription Fees. ARR and the corresponding Referral Fee Percentage shall be calculated on a per Qualified Referral basis with the Referral Fee Percentage set in accordance with the ARR of the Qualified Referral. For each Qualified Referral, Referral Fees to Partner shall be capped at the amounts listed on Exhibit B for the applicable Referral Fee Percentages (“Maximum Payment”).
755 Associated charges. Partner shall be responsible for payment of all taxes, duties, governmental charges and other like charges levied on the Referral Fees, and Partner shall indemnify, defend and hold Zendesk harmless from and against any claims arising out or relating to all charges emanating from Zendesk’s payment of Referral Fees. Associated charges. Partner shall be responsible for payment of all taxes, duties, governmental charges and other like charges levied on the Referral Fees, and Partner shall indemnify, defend and hold Zendesk harmless from and against any claims arising out or relating to all charges emanating from Zendesk’s payment of Referral Fees.
756
757 TERM AND TERMINATION. TERM AND TERMINATION.
758 Initial Term. This Agreement shall become effective as of the Effective Date and shall continue for twelve (12) months thereafter (“Initial Term”), unless Zendesk rejects Partner’s application to participate in the Program. Initial Term. This Agreement shall become effective as of the Effective Date and shall continue for twelve (12) months thereafter (“Initial Term”), unless Zendesk rejects Partner’s application to participate in the Program.
759 Renewal Term. Following expiration of the Initial Term, this Agreement will be automatically renewed for additional consecutive terms of twelve (12) months (each, a “Renewal Term”), unless a Party gives written notice of termination to the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. Renewal Term. Following expiration of the Initial Term, this Agreement will be automatically renewed for additional consecutive terms of twelve (12) months (each, a “Renewal Term”), unless a Party gives written notice of termination to the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.
760 Early Termination. Early Termination.
761 Without Cause. Zendesk shall have the right to terminate this Agreement at any time for any or no reason by giving ten (10) days’ prior written notice to Partner. Without Cause. Zendesk shall have the right to terminate this Agreement at any time for any or no reason by giving ten (10) days’ prior written notice to Partner.
762 For Cause. Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement the terminating Party shall provide written notice of such material breach and thirty (30) days’ opportunity for the breaching Party to cure such breach. For Cause. Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement the terminating Party shall provide written notice of such material breach and thirty (30) days’ opportunity for the breaching Party to cure such breach.
763 Effect of Termination. From and following the date of termination of this Agreement Partner’s rights under this Agreement shall terminate, and Partner shall not be entitled to receive any Referral Fees or any other payments under this Agreement other than commissions or payments earned or accrued prior to termination of this Agreement. Effect of Termination. From and following the date of termination of this Agreement Partner’s rights under this Agreement shall terminate, and Partner shall not be entitled to receive any Referral Fees or any other payments under this Agreement other than commissions or payments earned or accrued prior to termination of this Agreement.
764
765 GENERAL. GENERAL.
766 Modification of Agreement. Zendesk may modify this Agreement from time-to-time at its reasonable discretion by posting a change on the Site or notifying Partner via email. If Partner objects to any such change, Partner may terminate this Agreement for cause. Partner’s continued participation in the Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended. Modification of Agreement. Zendesk may modify this Agreement from time-to-time at its reasonable discretion by posting a change on the Site or notifying Partner via email. If Partner objects to any such change, Partner may terminate this Agreement for cause. Partner’s continued participation in the Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended.
767 Assignment. Zendesk may assign this Agreement at any time. Partner may not assign or transfer this Agreement without Zendesk’s prior written consent, such consent not to be unreasonably withheld. Assignment. Zendesk may assign this Agreement at any time. Partner may not assign or transfer this Agreement without Zendesk’s prior written consent, such consent not to be unreasonably withheld.
768 Intellectual Property Rights. All intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) in Zendesk Marks, the Zendesk Service and related content and technology around the world (“Zendesk IP Rights”) are and will remain the exclusive property of Zendesk and its subsidiary companies. The License granted by Zendesk to Partner under Section 1 of the Business Terms is granted solely under the terms of this Agreement and in furtherance of its objectives. Partner’s right to use the Licensed Marks is at the discretion of Zendesk and is subject to Partner’s compliance with the terms of this Agreement, Guidelines, and with all applicable laws and regulations. Partner agrees to (a) not use any Zendesk IP Rights in any manner reasonably likely to breach this Agreement; (b) not do anything contesting or impairing any Zendesk IP Rights; (c) not create or obtain any intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) that are substantially similar to any Zendesk IP Rights; (d) promptly notify Zendesk of any unauthorized use of any Zendesk IP Rights of which Partner has actual knowledge; and (e) always use the Licensed Marks and any other Zendesk Marks in compliance with the Guidelines. Zendesk may perform periodic reviews of any Marketing Materials presented by Partner, and shall have the exclusive authority and discretion to order the removal and/or amendment of any Marketing Materials presented by Partner. Intellectual Property Rights. All intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) in Zendesk Marks, the Zendesk Service and related content and technology around the world (“Zendesk IP Rights”) are and will remain the exclusive property of Zendesk and its subsidiary companies. The License granted by Zendesk to Partner under Section 1 of the Business Terms is granted solely under the terms of this Agreement and in furtherance of its objectives. Partner’s right to use the Licensed Marks is at the discretion of Zendesk and is subject to Partner’s compliance with the terms of this Agreement, Guidelines, and with all applicable laws and regulations. Partner agrees to (a) not use any Zendesk IP Rights in any manner reasonably likely to breach this Agreement; (b) not do anything contesting or impairing any Zendesk IP Rights; (c) not create or obtain any intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) that are substantially similar to any Zendesk IP Rights; (d) promptly notify Zendesk of any unauthorized use of any Zendesk IP Rights of which Partner has actual knowledge; and (e) always use the Licensed Marks and any other Zendesk Marks in compliance with the Guidelines. Zendesk may perform periodic reviews of any Marketing Materials presented by Partner, and shall have the exclusive authority and discretion to order the removal and/or amendment of any Marketing Materials presented by Partner.
769 No Waiver. Either Party’s failure to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this Agreement. No Waiver. Either Party’s failure to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this Agreement.
770 Limited Warranty. Both Parties warrant that at all times during the Term they will comply with all applicable laws, regulations, codes of practice, as well as this Agreement, the Master Agreement, Privacy Policy and Guidelines. During the Term and after termination of this Agreement for any reason whatsoever, Partner expressly undertakes not to do anything that might reasonably be expected to damage the business, interests or reputation of Zendesk and will not make, publish or allow to be made or published any disparaging remarks concerning Zendesk, its representatives, or the Zendesk Service. Limited Warranty. Both Parties warrant that at all times during the Term they will comply with all applicable laws, regulations, codes of practice, as well as this Agreement, the Master Agreement, Privacy Policy and Guidelines. During the Term and after termination of this Agreement for any reason whatsoever, Partner expressly undertakes not to do anything that might reasonably be expected to damage the business, interests or reputation of Zendesk and will not make, publish or allow to be made or published any disparaging remarks concerning Zendesk, its representatives, or the Zendesk Service.
771 Disclaimer of Warranty. Other than Zendesk’s express warranty under the previous subsection 5.5, Zendesk makes no other warranty, express or implied, of any kind and Zendesk expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement. Disclaimer of Warranty. Other than Zendesk’s express warranty under the previous subsection 5.5, Zendesk makes no other warranty, express or implied, of any kind and Zendesk expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement.
772 LIMITATION OF LIABILITY. NEITHER ZENDESK NOR ANY OFFICER, EMPLOYEE, DIRECTOR OR ANY OTHER REPRESENTATIVE OF ZENDESK SHALL BE LIABLE TOWARDS PARTNER OR TOWARDS ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS TERMINATION, IN CONTRACT, PRE-CONTRACT, TORT OR OTHERWISE FOR (A) ANY ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS) OR (B) ANY LOSS OF GOODWILL OR REPUTATION. SUCH LOSSES INCLUDE, WITHOUT LIMITATION, ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES AS WELL AS ANY LOSSES OR DAMAGES CAUSED BY INTERRUPTION OF OPERATIONS. NOTWITHSTANDING ANY OTHER CIRCUMSTANCES OR UNDERSTANDINGS SURROUNDING ANY RELATIONS AMONG THE PARTIES, ZENDESK’S ENTIRE LIABILITY TO PARTNER UNDER THIS AGREEMENT SHALL NOT EXCEED $100 U.S. FOR ANY AND ALL CLAIMS FOR DAMAGES OF ANY KIND MADE BY PARTNER UNDER THIS AGREEMENT, AND BY ENTERING THIS AGREEMENT PARTNER RECOGNIZES THE LIMITATIONS HEREIN ON ZENDESK’S LIABILITY. LIMITATION OF LIABILITY. NEITHER ZENDESK NOR ANY OFFICER, EMPLOYEE, DIRECTOR OR ANY OTHER REPRESENTATIVE OF ZENDESK SHALL BE LIABLE TOWARDS PARTNER OR TOWARDS ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS TERMINATION, IN CONTRACT, PRE-CONTRACT, TORT OR OTHERWISE FOR (A) ANY ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS) OR (B) ANY LOSS OF GOODWILL OR REPUTATION. SUCH LOSSES INCLUDE, WITHOUT LIMITATION, ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES AS WELL AS ANY LOSSES OR DAMAGES CAUSED BY INTERRUPTION OF OPERATIONS. NOTWITHSTANDING ANY OTHER CIRCUMSTANCES OR UNDERSTANDINGS SURROUNDING ANY RELATIONS AMONG THE PARTIES, ZENDESK’S ENTIRE LIABILITY TO PARTNER UNDER THIS AGREEMENT SHALL NOT EXCEED $100 U.S. FOR ANY AND ALL CLAIMS FOR DAMAGES OF ANY KIND MADE BY PARTNER UNDER THIS AGREEMENT, AND BY ENTERING THIS AGREEMENT PARTNER RECOGNIZES THE LIMITATIONS HEREIN ON ZENDESK’S LIABILITY.
773 Independent Contractors. The Parties herein act on their own behalf as independent contractors. Nothing in this Agreement shall create any joint venture, agency, franchise, sales representative, employment or any other relationship between the Parties beyond the relations set out in this Agreement, and Partner is expressly precluded from acting on Zendesk’s behalf. Partner’s display of Licensed Marks under this Agreement, other content presented by Partner, or contact among Partner and third parties shall not misrepresent the relations described herein. Independent Contractors. The Parties herein act on their own behalf as independent contractors. Nothing in this Agreement shall create any joint venture, agency, franchise, sales representative, employment or any other relationship between the Parties beyond the relations set out in this Agreement, and Partner is expressly precluded from acting on Zendesk’s behalf. Partner’s display of Licensed Marks under this Agreement, other content presented by Partner, or contact among Partner and third parties shall not misrepresent the relations described herein.
774 Indemnification. Partner will indemnify, defend and hold Zendesk and its subsidiaries, affiliates, officers and employees (the “Zendesk Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Zendesk Indemnified Parties arising from any of the following: (a) a breach of the Agreement by Partner; (b) the negligence, gross negligence or willful misconduct of Partner or its employees, agents or contractors; or (c) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore. Indemnification. Partner will indemnify, defend and hold Zendesk and its subsidiaries, affiliates, officers and employees (the “Zendesk Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Zendesk Indemnified Parties arising from any of the following: (a) a breach of the Agreement by Partner; (b) the negligence, gross negligence or willful misconduct of Partner or its employees, agents or contractors; or (c) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore.
775 Confidential Information and Prohibition on Raiding. Each of the Parties guarantees that all information of a confidential nature received from the other Party before, during and after the conclusion of the Agreement shall remain confidential. Information shall in any event be considered confidential if related to pricing, discounts, Referrals’ information or if designated as confidential by either of the Parties. Neither Party shall for the duration of this Agreement and for one year after termination thereof hire, employ or solicit any employee of the other Party, or have such employee work for such Party either directly or indirectly. Confidential Information and Prohibition on Raiding. Each of the Parties guarantees that all information of a confidential nature received from the other Party before, during and after the conclusion of the Agreement shall remain confidential. Information shall in any event be considered confidential if related to pricing, discounts, Referrals’ information or if designated as confidential by either of the Parties. Neither Party shall for the duration of this Agreement and for one year after termination thereof hire, employ or solicit any employee of the other Party, or have such employee work for such Party either directly or indirectly.
776 Force Majeure. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Zendesk’s suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party. Force Majeure. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Zendesk’s suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.
777 Entire Agreement; Severability. This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Entire Agreement; Severability. This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
778 Anti-Bribery and Export Compliance. Partner agrees not to promote, approach or submit Referrals, or use distribute, transfer, provide, sub-license, share with, or otherwise offer the Service in violation of any Laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, Partner will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) the Service to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the EAR or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation. Compliance with the trade laws of other countries pertaining to the Export, import, use, or distribution of the Service to Customers and End Users is Partner’s responsibility. Anti-Bribery and Export Compliance. Partner agrees not to promote, approach or submit Referrals, or use distribute, transfer, provide, sub-license, share with, or otherwise offer the Service in violation of any Laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, Partner will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) the Service to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the EAR or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation. Compliance with the trade laws of other countries pertaining to the Export, import, use, or distribution of the Service to Customers and End Users is Partner’s responsibility.
779 Non-Disparagement. During the Term and for five (5) years thereafter, Partner agrees that it will not disparage Zendesk or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Zendesk’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Zendesk or any its officers, directors or employees. The Parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in the Zendesk refusing to enter into this Agreement. Non-Disparagement. During the Term and for five (5) years thereafter, Partner agrees that it will not disparage Zendesk or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Zendesk’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Zendesk or any its officers, directors or employees. The Parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in the Zendesk refusing to enter into this Agreement.
780 Parties’ Expenses. The Parties shall each carry and pay all their respective costs, charges and expenses incurred by it in the performance of this Agreement, except as otherwise may be agreed-upon by the Parties in writing in advance. Parties’ Expenses. The Parties shall each carry and pay all their respective costs, charges and expenses incurred by it in the performance of this Agreement, except as otherwise may be agreed-upon by the Parties in writing in advance.
781 Notices. All notices relating to this Agreement shall be delivered via email (with return receipt) or next-day mail to the addresses detailed in the Cover Page. Notices. All notices relating to this Agreement shall be delivered via email (with return receipt) or next-day mail to the addresses detailed in the Cover Page.
782 Governing Law; Jurisdiction; Dispute Resolution. This Agreement shall be governed by the laws of the State of California, U.S.A, without giving effect to any principles of conflicts of law. Jurisdiction shall lie exclusively in the District Courts of San Francisco County, California. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of California, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or forum non conveniens. Prior to initiating any legal action arising under or relating to this Agreement, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with a view to speedy resolution of such dispute within ten (10) business days of the receipt of such notice. Governing Law; Jurisdiction; Dispute Resolution. This Agreement shall be governed by the laws of the State of California, U.S.A, without giving effect to any principles of conflicts of law. Jurisdiction shall lie exclusively in the District Courts of San Francisco County, California. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of California, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or forum non conveniens. Prior to initiating any legal action arising under or relating to this Agreement, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with a view to speedy resolution of such dispute within ten (10) business days of the receipt of such notice.
783
784
785 Exhibit A Exhibit A
786 PERMITTED ZENDESK MARKS FOR USE BY PARTNER PERMITTED ZENDESK MARKS FOR USE BY PARTNER
787 Logos: Licensed Marks to be provided to Partner by Zendesk. Logos: Licensed Marks to be provided to Partner by Zendesk.
788 Box Letter Trademarks: Zendesk® or ZENDESK® (Top level Zendesk Mark associated with all of Zendesk’’s help desk product line). Box Letter Trademarks: Zendesk® or ZENDESK® (Top level Zendesk Mark associated with all of Zendesk’’s help desk product line).
789
790 Exhibit B Exhibit B
791 Referral Fees Referral Fees
792 Referral Fee Table to be provided to Partner after signing up for the Zendesk Referral Program. Referral Fee Table to be provided to Partner after signing up for the Zendesk Referral Program.
793 Reseller Subscription Services Agreement Reseller Subscription Services Agreement
794 We have updated the Terms of Service applicable to the customers of Zendesk resellers and BPOs which we now refer to as the “Subscription Services Agreement.” If you are a new Subscriber, then this Subscription Services Agreement will be effective as of November 1, 2016. If you are an existing Subscriber, we are providing you with prior notice of these changes which will be effective as of December 1, 2016. For a prior version of our Reseller Customer Terms of Service, click here . We have updated the Terms of Service applicable to the customers of Zendesk resellers and BPOs which we now refer to as the “Subscription Services Agreement.” If you are a new Subscriber, then this Subscription Services Agreement will be effective as of November 1, 2016. If you are an existing Subscriber, we are providing you with prior notice of these changes which will be effective as of December 1, 2016. For a prior version of our Reseller Customer Terms of Service, click here .
795 SUBSCRIPTION SERVICES AGREEMENT SUBSCRIPTION SERVICES AGREEMENT
796 APPLICABLE TO CUSTOMERS OF ZENDESK RESELLERS APPLICABLE TO CUSTOMERS OF ZENDESK RESELLERS
797 You (“Subscriber,” “You,” “Your” or related terms) are acquiring a subscription to a Service, (as defined below) operated by Zendesk from an unrelated third party authorized to sell such subscriptions (“Reseller”) under a separate agreement with Zendesk (“Reseller Agreement”). In addition to any terms and conditions related to Your use of the Service pursuant to any agreement by and between You and the Reseller, this Agreement contains the terms and conditions that govern Your access to and use of the Service. Zendesk is an express beneficiary of this Agreement, and in acquiring a subscription to the Service, You expressly acknowledge and agree that Zendesk shall have the right to enforce this Agreement against You and that this Agreement constitutes the entire agreement and supersedes any and all prior agreements between You and Zendesk with regard to Your subscription to the Service or Your access to or use thereof under this Agreement and Your agreement between You and the Reseller. By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Zendesk that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services. You (“Subscriber,” “You,” “Your” or related terms) are acquiring a subscription to a Service, (as defined below) operated by Zendesk from an unrelated third party authorized to sell such subscriptions (“Reseller”) under a separate agreement with Zendesk (“Reseller Agreement”). In addition to any terms and conditions related to Your use of the Service pursuant to any agreement by and between You and the Reseller, this Agreement contains the terms and conditions that govern Your access to and use of the Service. Zendesk is an express beneficiary of this Agreement, and in acquiring a subscription to the Service, You expressly acknowledge and agree that Zendesk shall have the right to enforce this Agreement against You and that this Agreement constitutes the entire agreement and supersedes any and all prior agreements between You and Zendesk with regard to Your subscription to the Service or Your access to or use thereof under this Agreement and Your agreement between You and the Reseller. By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Zendesk that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
798 Table of Contents: Table of Contents:
799 General Terms and Conditions: General Terms and Conditions:
800 1. Definitions 1. Definitions
801 2. General Conditions; Access To And Use Of The Services 2. General Conditions; Access To And Use Of The Services
802 3. Confidentiality; Security and Privacy 3. Confidentiality; Security and Privacy
803 4. Intellectual Property Rights 4. Intellectual Property Rights
804 5. Third Party Services 5. Third Party Services
805 6. Credits Policy 6. Credits Policy
806 7. Cancellation and Termination 7. Cancellation and Termination
807 8. Representations, Warranties and Disclaimers 8. Representations, Warranties and Disclaimers
808 9. Limitation of Liability 9. Limitation of Liability
809 10. Indemnification 10. Indemnification
810 11. Assignment, Entire Agreement and Amendment 11. Assignment, Entire Agreement and Amendment
811 12. Severability 12. Severability
812 13. Export Compliance and Use Restrictions 13. Export Compliance and Use Restrictions
813 14. Relationship of the Parties 14. Relationship of the Parties
814 15. Notice 15. Notice
815 16. Governing Law 16. Governing Law
816 17. Federal Government End Use Provisions 17. Federal Government End Use Provisions
817 18. Anti-Corruption 18. Anti-Corruption
818 19. Survival 19. Survival
819 Supplemental Terms and Conditions: Supplemental Terms and Conditions:
820 1. Service-Specific Terms 1. Service-Specific Terms
821 2. How We Protect Your Service Data 2. How We Protect Your Service Data
822 3. Country-Specific Terms 3. Country-Specific Terms
823 4. Consulting Services 4. Consulting Services
824 1. DEFINITIONS 1. DEFINITIONS
825 When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings: When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
826 Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services. Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
827 Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise. Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
828 Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login. Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
829 Agreement: means this Subscription Services Agreement together with any and all Supplements, Additional Terms and Order Forms. Agreement: means this Subscription Services Agreement together with any and all Supplements, Additional Terms and Order Forms.
830 API: means the application programming interfaces developed and enabled by Zendesk that permits Subscribers to access certain functionality provided by the Services, including without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications. API: means the application programming interfaces developed and enabled by Zendesk that permits Subscribers to access certain functionality provided by the Services, including without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
831 Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, including without limitation, integrations and applications created or developed by Zendesk or its Affiliates and made available in the Zendesk marketplace (available at https://www.zendesk.com/apps) which are expressly stated to be governed by this Agreement. For avoidance of doubt, none of the Services or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms shall be deemed an Associated Service. Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, including without limitation, integrations and applications created or developed by Zendesk or its Affiliates and made available in the Zendesk marketplace (available at https://www.zendesk.com/apps) which are expressly stated to be governed by this Agreement. For avoidance of doubt, none of the Services or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms shall be deemed an Associated Service.
832 Beta Services: means a product, service or functionality provided by Zendesk that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description. Beta Services: means a product, service or functionality provided by Zendesk that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
833 Confidential Information: means all information disclosed by You to Zendesk or by Zendesk to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to Zendesk’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information. Confidential Information: means all information disclosed by You to Zendesk or by Zendesk to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to Zendesk’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
834 Consulting Services: means consulting professional services (including any Training, Success or Implementation Services) provided by Zendesk or its authorized subcontractors as indicated on a Order Form or other written document such as a statement of work. Consulting Services: means consulting professional services (including any Training, Success or Implementation Services) provided by Zendesk or its authorized subcontractors as indicated on a Order Form or other written document such as a statement of work.
835 Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data. Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.
836 Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services, as applicable, provided or made available by Zendesk to You in the applicable Zendesk help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s). Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services, as applicable, provided or made available by Zendesk to You in the applicable Zendesk help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
837 End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service. End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service.
838 Master Subscription Agreement: means the agreement governing direct customer’s use of the Services as found here . Master Subscription Agreement: means the agreement governing direct customer’s use of the Services as found here .
839 Order Form: means any of Our generated service order forms executed or approved by the Reseller managing Your subscription to the Service with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service. Order Form: means any of Our generated service order forms executed or approved by the Reseller managing Your subscription to the Service with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
840 Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Other Services which may be integrated directly into Your Account. Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Other Services which may be integrated directly into Your Account.
841 Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity. Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
842 Personnel: means employees and/or non-employee service providers and contractors of the Zendesk Group. Personnel: means employees and/or non-employee service providers and contractors of the Zendesk Group.
843 Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
844 Service(s): means the products and services that are ordered by the Reseller on Your behalf online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, Updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”). “Services” exclude Other Services as that term is defined in this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described. Service(s): means the products and services that are ordered by the Reseller on Your behalf online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, Updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”). “Services” exclude Other Services as that term is defined in this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
845 Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within the Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data. Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within the Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
846 Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe. Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.
847 Site: means a website operated by the Zendesk Group, including www.zendesk.com, as well as all other websites that the Zendesk Group operates. Site: means a website operated by the Zendesk Group, including www.zendesk.com, as well as all other websites that the Zendesk Group operates.
848 Software: means software provided by Zendesk (either by download or access through the internet) that allows an Agent or End-Users to use any functionality in connection with the applicable Service. Software: means software provided by Zendesk (either by download or access through the internet) that allows an Agent or End-Users to use any functionality in connection with the applicable Service.
849 Subscription Terms: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent. Subscription Terms: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.
850 Supplemental Terms: means the additional terms and conditions that are (a) contained in this Agreement under the Section entitled, “Supplemental Terms and Conditions” which apply and are incorporated into this Agreement with certain Services, features, or functionality; (b) included or incorporated on an Order Form (e.g. when a Deployed Associated Service is purchased); and (c) applicable to Consulting Services when purchased by You. Supplemental Terms: means the additional terms and conditions that are (a) contained in this Agreement under the Section entitled, “Supplemental Terms and Conditions” which apply and are incorporated into this Agreement with certain Services, features, or functionality; (b) included or incorporated on an Order Form (e.g. when a Deployed Associated Service is purchased); and (c) applicable to Consulting Services when purchased by You.
851 Usage Data: means encoded or anonymized information or aggregated data that the Zendesk Group may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, which does not contain Personal Data. Usage Data: means encoded or anonymized information or aggregated data that the Zendesk Group may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, which does not contain Personal Data.
852 “We,” “Us” or “Our”: means Zendesk as defined below. “We,” “Us” or “Our”: means Zendesk as defined below.
853 Zendesk: means Zendesk, Inc., a Delaware corporation, its Payment Agent or any of its successors or assignees. Zendesk: means Zendesk, Inc., a Delaware corporation, its Payment Agent or any of its successors or assignees.
854 Zendesk Group: means Zendesk, Inc., a Delaware Corporation together with all its Affiliates. Zendesk Group: means Zendesk, Inc., a Delaware Corporation together with all its Affiliates.
855 2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES 2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES
856 2.1 During the Subscription Term and subject to compliance by You, Agents and End-Users with this Agreement and Zendesk’s receipt of payment related to Your subscription, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased, unless otherwise agreed with the Reseller; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Other Services, or acts undertaken by third parties, including without limitation, denial of service attack. 2.1 During the Subscription Term and subject to compliance by You, Agents and End-Users with this Agreement and Zendesk’s receipt of payment related to Your subscription, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased, unless otherwise agreed with the Reseller; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Other Services, or acts undertaken by third parties, including without limitation, denial of service attack.
857 2.2 You may not use the Services to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Zendesk from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing. 2.2 You may not use the Services to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Zendesk from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
858 2.3 A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Zendesk, including the Transport Layer Security (TLS) protocol or other protocols accepted by Zendesk, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Zendesk. We assume no responsibility for the reliability or performance of any connections as described in this section. 2.3 A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Zendesk, including the Transport Layer Security (TLS) protocol or other protocols accepted by Zendesk, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Zendesk. We assume no responsibility for the reliability or performance of any connections as described in this section.
859 2.4 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Zendesk or the Zendesk Group, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Zendesk; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement. 2.4 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Zendesk or the Zendesk Group, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Zendesk; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
860 2.5 You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account. 2.5 You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.
861 2.6 In addition to Our rights as set forth in Sections 2 and 7.3, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users. 2.6 In addition to Our rights as set forth in Sections 2 and 7.3, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users.
862 2.7 You acknowledge that Zendesk may modify the features and functionality of the Services during the Subscription Term. 2.7 You acknowledge that Zendesk may modify the features and functionality of the Services during the Subscription Term.
863 2.8 You may not access the Services if You are a direct competitor of the Zendesk Group, except with Zendesk’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes. 2.8 You may not access the Services if You are a direct competitor of the Zendesk Group, except with Zendesk’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
864 2.9 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase. 2.9 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
865 ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD. ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.
866 2.10 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Other Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service. 2.10 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Other Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
867 3. CONFIDENTIALITY; SECURITY AND PRIVACY 3. CONFIDENTIALITY; SECURITY AND PRIVACY
868 3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the Personnel who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data. 3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the Personnel who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.
869 3.2 The Zendesk Group will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Service Data” attached hereto, and Supplemental Terms for the Deployed Associated Services, as applicable. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Section 3.1(b) or 3.1(c); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing. The Zendesk Group’s compliance with the provisions of Sections 3.2 through 3.5 shall be deemed compliance with the Zendesk’s Group’s obligations to protect Service Data as set forth in the Agreement. 3.2 The Zendesk Group will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Service Data” attached hereto, and Supplemental Terms for the Deployed Associated Services, as applicable. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Section 3.1(b) or 3.1(c); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing. The Zendesk Group’s compliance with the provisions of Sections 3.2 through 3.5 shall be deemed compliance with the Zendesk’s Group’s obligations to protect Service Data as set forth in the Agreement.
870 3.3 To the extent Service Data constitutes Personal Data, You and the Zendesk Group hereby agree that You shall be deemed to be the data controller and the relevant entity in the Zendesk Group Party shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). Unless otherwise specifically agreed to by Zendesk, Service Data may be hosted by the Zendesk Group or their respective authorized third-party service providers in the United States, the EEA or other locations around the world. In providing the Services, Zendesk will engage entities within the Zendesk Group and other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the European Economic Area (the “EEA”), the United States and in other countries and territories. Under no circumstances will any entity in the Zendesk Group be deemed a data controller with respect to Service Data under the Directive or any relevant law or regulation of any Member State as defined in the Directive. 3.3 To the extent Service Data constitutes Personal Data, You and the Zendesk Group hereby agree that You shall be deemed to be the data controller and the relevant entity in the Zendesk Group Party shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). Unless otherwise specifically agreed to by Zendesk, Service Data may be hosted by the Zendesk Group or their respective authorized third-party service providers in the United States, the EEA or other locations around the world. In providing the Services, Zendesk will engage entities within the Zendesk Group and other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the European Economic Area (the “EEA”), the United States and in other countries and territories. Under no circumstances will any entity in the Zendesk Group be deemed a data controller with respect to Service Data under the Directive or any relevant law or regulation of any Member State as defined in the Directive.
871 3.4 If Your principal location is in the EEA, We will ensure, pursuant to Article 25 of the Directive that, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), that such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of the Directive is satisfied; or (c) the transfer is via the EU-US Privacy Shield or Swiss-US Safe Harbor frameworks. Upon Your request and subject to Your entry into Zendesk’s Data Processing Agreement (“DPA”) We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission (known as the, “Model Clauses”), which have been incorporated into the DPA. As a Subscriber, You can execute Our DPA by emailing Your request to Us at privacy@zendesk.com . 3.4 If Your principal location is in the EEA, We will ensure, pursuant to Article 25 of the Directive that, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), that such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of the Directive is satisfied; or (c) the transfer is via the EU-US Privacy Shield or Swiss-US Safe Harbor frameworks. Upon Your request and subject to Your entry into Zendesk’s Data Processing Agreement (“DPA”) We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission (known as the, “Model Clauses”), which have been incorporated into the DPA. As a Subscriber, You can execute Our DPA by emailing Your request to Us at privacy@zendesk.com .
872 3.5 You agree that the Zendesk Group and the third-party service providers that are utilized by the Zendesk Group to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by the Zendesk Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.3. 3.5 You agree that the Zendesk Group and the third-party service providers that are utilized by the Zendesk Group to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by the Zendesk Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.3.
873 3.6 In addition to Service Data, We collect certain information (which may include Personal Data) about You, Agents and End-Users as well as Your and their respective devices, computers and use of the Service. This includes, among other things: 3.6 In addition to Service Data, We collect certain information (which may include Personal Data) about You, Agents and End-Users as well as Your and their respective devices, computers and use of the Service. This includes, among other things:
874 Collecting analytics information when You use the Services. In the Services, analytics information may consist of the feature and function of the Service being used, the associated domain name, the username and IP address of Your Agents or End-Users and additional information required to detail the operation of the function and which parts of a Service are being affected. The analytics information that Zendesk collects may include elements of Service Data related to the function the Agents or End-Users are performing. Collecting analytics information when You use the Services. In the Services, analytics information may consist of the feature and function of the Service being used, the associated domain name, the username and IP address of Your Agents or End-Users and additional information required to detail the operation of the function and which parts of a Service are being affected. The analytics information that Zendesk collects may include elements of Service Data related to the function the Agents or End-Users are performing.
875 Aggregating information related to the use of the Services and publishing this information, as segmented by industry, geography and other metrics to provide qualitative insight on customer support metrics and other relevant insights through “Zendesk Benchmark” or similar features. You have the choice whether to participate by enabling Zendesk Benchmark from within the settings in the Services. If You do not want to participate then You should not enable Zendesk Benchmark. Aggregating information related to the use of the Services and publishing this information, as segmented by industry, geography and other metrics to provide qualitative insight on customer support metrics and other relevant insights through “Zendesk Benchmark” or similar features. You have the choice whether to participate by enabling Zendesk Benchmark from within the settings in the Services. If You do not want to participate then You should not enable Zendesk Benchmark.
876 Collecting Usage Data which is used to help understand trends in usage of the Services. In addition to collecting and using Usage Data ourselves, the Zendesk Group may share the Usage Data with third parties, including our subscribers, partners and service providers, for various purposes, including to help us better understand our subscribers’ needs and improve our Services. We may also publish Usage Data to provide relevant information about and to market the Services. Collecting Usage Data which is used to help understand trends in usage of the Services. In addition to collecting and using Usage Data ourselves, the Zendesk Group may share the Usage Data with third parties, including our subscribers, partners and service providers, for various purposes, including to help us better understand our subscribers’ needs and improve our Services. We may also publish Usage Data to provide relevant information about and to market the Services.
877 3.7 We use cookies and other tracking technologies in connection with Your access to and use the Services. These cookies and other tracking technologies may provide Us with Personal Data, information about devices and networks utilized to access Our Services, and other information regarding interactions with our Services by You, Your Agents and End-Users. This information allows Us to remember You and Your preferences and maximize and analyze the performance of the Services. We also use cookies to operate, enhance and personalize certain aspects of the Services. The aim of these cookies is to provide You with a more personal experience so that You do not have to reset your preferences each time You use the Services. 3.7 We use cookies and other tracking technologies in connection with Your access to and use the Services. These cookies and other tracking technologies may provide Us with Personal Data, information about devices and networks utilized to access Our Services, and other information regarding interactions with our Services by You, Your Agents and End-Users. This information allows Us to remember You and Your preferences and maximize and analyze the performance of the Services. We also use cookies to operate, enhance and personalize certain aspects of the Services. The aim of these cookies is to provide You with a more personal experience so that You do not have to reset your preferences each time You use the Services.
878 3.8 Zendesk may also obtain other information, including Personal Data, from third parties and combine that with information we collect through our Service. For example, we may have access to certain information from a third party social media or authentication service if you log into our Services through the service or otherwise provide us with access to information from the service. Any access that we may have to such information from a third party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing us to connect with a third party service, you authorize us to access and store your name, email address(es), current city, profile picture URL, and other Personal Data that the third party service makes available to us, and to use and disclose it in accordance with this Agreement and the Zendesk Privacy Policy as in effect from time to time and available here . 3.8 Zendesk may also obtain other information, including Personal Data, from third parties and combine that with information we collect through our Service. For example, we may have access to certain information from a third party social media or authentication service if you log into our Services through the service or otherwise provide us with access to information from the service. Any access that we may have to such information from a third party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing us to connect with a third party service, you authorize us to access and store your name, email address(es), current city, profile picture URL, and other Personal Data that the third party service makes available to us, and to use and disclose it in accordance with this Agreement and the Zendesk Privacy Policy as in effect from time to time and available here .
879 4. INTELLECTUAL PROPERTY RIGHTS 4. INTELLECTUAL PROPERTY RIGHTS
880 Each Party shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s), or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Zendesk and belong exclusively to Zendesk. The Zendesk Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-User, or other third parties acting on Your behalf. Zendesk®, and the Zendesk Group’s other product and service names, and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of the Zendesk Group (collectively, “Marks”), and You may only use applicable Marks in a manner permitted by Our Trademark Usage Guidelines to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products. Each Party shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s), or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Zendesk and belong exclusively to Zendesk. The Zendesk Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-User, or other third parties acting on Your behalf. Zendesk®, and the Zendesk Group’s other product and service names, and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of the Zendesk Group (collectively, “Marks”), and You may only use applicable Marks in a manner permitted by Our Trademark Usage Guidelines to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
881 5. THIRD PARTY SERVICES 5. THIRD PARTY SERVICES
882 If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Other Services. We cannot guarantee the continued availability of such Other Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of an Other Service ceases to make the Other Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Zendesk with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Zendesk to disclose Your Login as well as Service Data as necessary to facilitate the use or enablement of such Other Services. If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Other Services. We cannot guarantee the continued availability of such Other Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of an Other Service ceases to make the Other Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Zendesk with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Zendesk to disclose Your Login as well as Service Data as necessary to facilitate the use or enablement of such Other Services.
883 6. CREDITS POLICY 6. CREDITS POLICY
884 We may, at our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals. Zendesk reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You or a Reseller to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by Zendesk when issuing the credit. Credits can only be used by You and are non-transferable. We may, at our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals. Zendesk reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You or a Reseller to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by Zendesk when issuing the credit. Credits can only be used by You and are non-transferable.
885 To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
886 7. CANCELLATION AND TERMINATION 7. CANCELLATION AND TERMINATION
887 7.1 Under the terms and conditions of Our agreement with Reseller (the “Reseller Agreement”), We are entitled to suspend or terminate Your subscription to the Service, Your rights to access and use the Service or Your Account, and remove and discard any Service Data if: (a) We are notified by Reseller of Your failure to pay amounts due to Reseller with respect to Your subscription to a Service; or (b) Reseller fails to pay any amounts due to Us pursuant to the Reseller Agreement with respect to Your subscription to a Service. You consent to these suspension and termination rights and acknowledge and agree that Zendesk shall have no liability to You of any kind with respect to any such suspension or termination. Your sole recourse with respect to any such suspension or termination shall be against Reseller. 7.1 Under the terms and conditions of Our agreement with Reseller (the “Reseller Agreement”), We are entitled to suspend or terminate Your subscription to the Service, Your rights to access and use the Service or Your Account, and remove and discard any Service Data if: (a) We are notified by Reseller of Your failure to pay amounts due to Reseller with respect to Your subscription to a Service; or (b) Reseller fails to pay any amounts due to Us pursuant to the Reseller Agreement with respect to Your subscription to a Service. You consent to these suspension and termination rights and acknowledge and agree that Zendesk shall have no liability to You of any kind with respect to any such suspension or termination. Your sole recourse with respect to any such suspension or termination shall be against Reseller.
888 7.2 Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Service Data in the normal course of operation. Service Data cannot be recovered once Your Account is cancelled. 7.2 Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Service Data in the normal course of operation. Service Data cannot be recovered once Your Account is cancelled.
889 7.3 We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Agents or End-Users have violated this Agreement. This includes the removal or disablement of Service Data in accordance with Our Copyright Infringement Notice and Takedown Policy available at www.zendesk.com/company/trademark-property/#DMCA . Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion. 7.3 We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Agents or End-Users have violated this Agreement. This includes the removal or disablement of Service Data in accordance with Our Copyright Infringement Notice and Takedown Policy available at www.zendesk.com/company/trademark-property/#DMCA . Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
890 7.4 A Party may terminate this Agreement for cause (a) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination. 7.4 A Party may terminate this Agreement for cause (a) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
891 7.5 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Your Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Service Data, and as provided in the Documentation will have the right to delete or destroy all copies of Your Service Data in Our systems or otherwise in Our possession or control, unless legally prohibited. 7.5 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Your Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Service Data, and as provided in the Documentation will have the right to delete or destroy all copies of Your Service Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
892 8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS 8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
893 8.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so. 8.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
894 8.2 We warrant that during an applicable Subscription Term that (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 7.4 herein. 8.2 We warrant that during an applicable Subscription Term that (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 7.4 herein.
895 8.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. 8.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
896 9. LIMITATION OF LIABILITY 9. LIMITATION OF LIABILITY
897 9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS OR SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. 9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS OR SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
898 9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE ZENDESK GROUP’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY RESELLER TO ZENDESK WITH RESPECT TO YOUR SUBSCRIPTION TO SUCH SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES FOR YOUR SUBSCRIPTION, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THIS AGREEMENT. 9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE ZENDESK GROUP’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY RESELLER TO ZENDESK WITH RESPECT TO YOUR SUBSCRIPTION TO SUCH SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES FOR YOUR SUBSCRIPTION, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THIS AGREEMENT.
899 9.3 Some jurisdictions 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 JURISDICTIONS, THE ZENDESK GROUP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. 9.3 Some jurisdictions 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 JURISDICTIONS, THE ZENDESK GROUP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
900 9.4 Any claims or damages that You may have against Zendesk shall only be enforceable against Zendesk and not any other entity or its officers, directors, representatives or agents. 9.4 Any claims or damages that You may have against Zendesk shall only be enforceable against Zendesk and not any other entity or its officers, directors, representatives or agents.
901 10. INDEMNIFICATION 10. INDEMNIFICATION
902 10.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Zendesk for such defense, provided that (a) You promptly notify Zendesk of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Zendesk in connection therewith. If use of a Service by You, Agents or End-Users has become, or in Our opinion is likely to become, the subject of any such IP Claim, We may at Our option and expense (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Zendesk, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Zendesk for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 10.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Zendesk; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. 10.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Zendesk for such defense, provided that (a) You promptly notify Zendesk of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Zendesk in connection therewith. If use of a Service by You, Agents or End-Users has become, or in Our opinion is likely to become, the subject of any such IP Claim, We may at Our option and expense (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Zendesk, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Zendesk for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 10.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Zendesk; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing.
903 The provisions of this Section 10.1 state the sole, exclusive and entire liability of Zendesk to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users. The provisions of this Section 10.1 state the sole, exclusive and entire liability of Zendesk to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.
904 10.2 You will indemnify and hold Zendesk harmless against any claim brought by a third party against Zendesk arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement or matters which You have expressly agreed to be responsible pursuant to this Agreement; provided that We promptly notify You of the threat or notice of such a claim. We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or fault upon Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith. 10.2 You will indemnify and hold Zendesk harmless against any claim brought by a third party against Zendesk arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement or matters which You have expressly agreed to be responsible pursuant to this Agreement; provided that We promptly notify You of the threat or notice of such a claim. We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or fault upon Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.
905 11. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT 11. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
906 11.1 Under the terms of the Reseller Agreement, Your agreement with the Reseller with respect to Your subscription to the Service may be assigned to Zendesk. You agree that if the Your agreement with Reseller is assigned to Zendesk, Your continued rights to access and use the Service shall be subject to Zendesk’s then standard Master Subscription Agreement and You consent to the application of such terms and conditions, including without limitation, the billing and payment provisions contained therein. You agree that following any such assignment, You shall, upon request by Zendesk, provide such information as is required to secure payment for any Subscription Term commencing after such assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the Zendesk Group or in connection with any merger or change of control of Zendesk or the Zendesk Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. 11.1 Under the terms of the Reseller Agreement, Your agreement with the Reseller with respect to Your subscription to the Service may be assigned to Zendesk. You agree that if the Your agreement with Reseller is assigned to Zendesk, Your continued rights to access and use the Service shall be subject to Zendesk’s then standard Master Subscription Agreement and You consent to the application of such terms and conditions, including without limitation, the billing and payment provisions contained therein. You agree that following any such assignment, You shall, upon request by Zendesk, provide such information as is required to secure payment for any Subscription Term commencing after such assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the Zendesk Group or in connection with any merger or change of control of Zendesk or the Zendesk Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
907 11.2 This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Zendesk with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services as detailed in a Supplement hereto or that We offer as part of or distinct from the Services (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control. 11.2 This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Zendesk with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services as detailed in a Supplement hereto or that We offer as part of or distinct from the Services (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control.
908 11.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Zendesk as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement. 11.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Zendesk as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
909 12. SEVERABILITY 12. SEVERABILITY
910 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
911 13. EXPORT COMPLIANCE AND USE RESTRICTIONS 13. EXPORT COMPLIANCE AND USE RESTRICTIONS
912 The Services and other Software or components of the Services that We may provide or make available to You, Agents or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You, Agents and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located. The Services and other Software or components of the Services that We may provide or make available to You, Agents or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You, Agents and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located.
913 14. RELATIONSHIP OF THE PARTIES 14. RELATIONSHIP OF THE PARTIES
914 The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
915 15. NOTICE 15. NOTICE
916 All notices to be provided by Zendesk to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Zendesk in writing by Courier or U.S. mail to 1019 Market Street, San Francisco, California 94103 U.S.A. Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above. All notices to be provided by Zendesk to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Zendesk in writing by Courier or U.S. mail to 1019 Market Street, San Francisco, California 94103 U.S.A. Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
917 16. GOVERNING LAW 16. GOVERNING LAW
918 This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users.
919 17. FEDERAL GOVERNMENT END USE PROVISIONS 17. FEDERAL GOVERNMENT END USE PROVISIONS
920 If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement. If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
921 18. ANTI-CORRUPTION 18. ANTI-CORRUPTION
922 You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@zendesk.com . You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@zendesk.com .
923 19. SURVIVAL 19. SURVIVAL
924 Sections 1, 3.1, 4 and 8-19 shall survive any termination of our agreement with respect to use of the Services by You, Agents or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement. Sections 1, 3.1, 4 and 8-19 shall survive any termination of our agreement with respect to use of the Services by You, Agents or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
925 SUPPLEMENTAL TERMS AND CONDITIONS SUPPLEMENTAL TERMS AND CONDITIONS
926 SECTION 1: SERVICE-SPECIFIC TERMS SECTION 1: SERVICE-SPECIFIC TERMS
927 The terms and conditions in the section entitled, “General Terms and Conditions” (“General Terms”) apply generally to all Services. This section contains supplemental service-specific terms that are in addition to the General Terms. The terms and conditions in the section entitled, “General Terms and Conditions” (“General Terms”) apply generally to all Services. This section contains supplemental service-specific terms that are in addition to the General Terms.
928 Supplemental Terms for Zendesk’s Talk Service (“Zendesk Talk”): Supplemental Terms for Zendesk’s Talk Service (“Zendesk Talk”):
929 If Your Service Plan for Zendesk Support allows You to use Zendesk Talk or You otherwise subscribe to or utilize Zendesk Talk as a Service, the following Supplemental Terms apply: If Your Service Plan for Zendesk Support allows You to use Zendesk Talk or You otherwise subscribe to or utilize Zendesk Talk as a Service, the following Supplemental Terms apply:
930 You understand and agree that (a) Zendesk Talk is not intended to support or carry emergency calls to any emergency services such as public safety answering points; (b) We will not be held liable for any claim, damages or loss (and You hereby waive any and all such claims or causes of action), arising from or relating to Your (or Agents’ or End-Users’) inability to use Zendesk Talk to make such emergency calls; (c) You are solely responsible for Your operation of Zendesk Talk (including the available texting functionality) in compliance with all applicable laws in all jurisdictions, including but not limited to telephone recording and wiretapping laws and laws related to telemarketing and spam such as the Telephone Consumer Protection Act; and (d) You will defend, hold harmless and indemnify Us from and against any third party claim arising from any of the foregoing. You understand and agree that (a) Zendesk Talk is not intended to support or carry emergency calls to any emergency services such as public safety answering points; (b) We will not be held liable for any claim, damages or loss (and You hereby waive any and all such claims or causes of action), arising from or relating to Your (or Agents’ or End-Users’) inability to use Zendesk Talk to make such emergency calls; (c) You are solely responsible for Your operation of Zendesk Talk (including the available texting functionality) in compliance with all applicable laws in all jurisdictions, including but not limited to telephone recording and wiretapping laws and laws related to telemarketing and spam such as the Telephone Consumer Protection Act; and (d) You will defend, hold harmless and indemnify Us from and against any third party claim arising from any of the foregoing.
931 Zendesk may disable the phone numbers provided to You if unused or substantially underused for sixty (60) days, or if Your subscription to the Service, Account or rights to access and/or use the Service is otherwise suspended, terminated, or cancelled. Zendesk may disable the phone numbers provided to You if unused or substantially underused for sixty (60) days, or if Your subscription to the Service, Account or rights to access and/or use the Service is otherwise suspended, terminated, or cancelled.
932 At Zendesk’s election, Subscription Charges for Zendesk Talk may be charged in arrears or by requiring Reseller to prepay for expected usage. To the extent that Reseller is required to prepay for expected usage of Zendesk Talk, the credit card on file will automatically be recharged with the same amount and by the same payment method chosen when Your Account first establishes a prepaid credit for Zendesk Talk, or by such additional amount Reseller requests as a regular prepaid credit. At Zendesk’s election, Subscription Charges for Zendesk Talk may be charged in arrears or by requiring Reseller to prepay for expected usage. To the extent that Reseller is required to prepay for expected usage of Zendesk Talk, the credit card on file will automatically be recharged with the same amount and by the same payment method chosen when Your Account first establishes a prepaid credit for Zendesk Talk, or by such additional amount Reseller requests as a regular prepaid credit.
933 If Reseller prepays for Zendesk Talk via check, wire, or ACH, Zendesk reserves the right to automatically re-invoice Reseller for the same amount as the previous pre-payment amount if Subscriber’s balance reaches $0.00. If Reseller wishes to cancel or change this automatic re-charge option, then Reseller should contact its Sales Representative or support@zendesk.com . If Reseller prepays for Zendesk Talk via check, wire, or ACH, Zendesk reserves the right to automatically re-invoice Reseller for the same amount as the previous pre-payment amount if Subscriber’s balance reaches $0.00. If Reseller wishes to cancel or change this automatic re-charge option, then Reseller should contact its Sales Representative or support@zendesk.com .
934 If Your Zendesk Talk Service Plan includes Zendesk Text, then Subscriber agrees that only its Agents who have purchased both Zendesk Talk and Zendesk Text are authorized to use Zendesk Text. Zendesk reserves the right to monitor and periodically audit Your use of Zendesk Talk and Zendesk Text to ensure that Your use complies with these Supplemental Terms and the Zendesk Talk Service Plan restrictions on Our Site. Should Zendesk discover that Your or any Agent’s use of Zendesk Talk or Zendesk Text is not in compliance with these Supplemental Terms and the Zendesk Talk Service Plan restrictions on Our Site, Zendesk reserves the right to charge Reseller, and You hereby agree to pay for, said usage. If Your Zendesk Talk Service Plan includes Zendesk Text, then Subscriber agrees that only its Agents who have purchased both Zendesk Talk and Zendesk Text are authorized to use Zendesk Text. Zendesk reserves the right to monitor and periodically audit Your use of Zendesk Talk and Zendesk Text to ensure that Your use complies with these Supplemental Terms and the Zendesk Talk Service Plan restrictions on Our Site. Should Zendesk discover that Your or any Agent’s use of Zendesk Talk or Zendesk Text is not in compliance with these Supplemental Terms and the Zendesk Talk Service Plan restrictions on Our Site, Zendesk reserves the right to charge Reseller, and You hereby agree to pay for, said usage.
935 Use of Zendesk Talk and the related functionality is subject to the obligation to pay applicable usage fees, Subscription Charges and other applicable charges stated here. By enabling or otherwise using Zendesk Talk, You are agreeing to pay these charges through Reseller. Usage fees and charges are subject to change and may be revised by Zendesk at any time. Use of Zendesk Talk and the related functionality is subject to the obligation to pay applicable usage fees, Subscription Charges and other applicable charges stated here. By enabling or otherwise using Zendesk Talk, You are agreeing to pay these charges through Reseller. Usage fees and charges are subject to change and may be revised by Zendesk at any time.
936 Some jurisdictions may require that Your business have an address within the jurisdiction to purchase a phone number through Zendesk Talk. If You are in such a jurisdiction, You agree to provide a business address within the jurisdiction. You further authorize Zendesk to disclose the given address to our third party voice service provider, Twilio, Inc. (“Twilio”), and any necessary governmental agency. Twilio’s and the necessary governmental agency’s terms and policies will govern their use of the address and the Reseller Customer Master Service Agreement and Privacy Policy do not govern their use of the address. You further understand that Your phone number in the jurisdiction may be taken out of service if You are unable to provide a local address in any such jurisdiction. Some jurisdictions may require that Your business have an address within the jurisdiction to purchase a phone number through Zendesk Talk. If You are in such a jurisdiction, You agree to provide a business address within the jurisdiction. You further authorize Zendesk to disclose the given address to our third party voice service provider, Twilio, Inc. (“Twilio”), and any necessary governmental agency. Twilio’s and the necessary governmental agency’s terms and policies will govern their use of the address and the Reseller Customer Master Service Agreement and Privacy Policy do not govern their use of the address. You further understand that Your phone number in the jurisdiction may be taken out of service if You are unable to provide a local address in any such jurisdiction.
937 Supplemental Terms for Zendesk’s Explore Service (“Zendesk Explore”): Supplemental Terms for Zendesk’s Explore Service (“Zendesk Explore”):
938 If Your Service Plan for Zendesk Support allows You to use Zendesk Explore or You otherwise subscribe to or utilize Zendesk Explore as a Service, the following Supplemental Terms apply: If Your Service Plan for Zendesk Support allows You to use Zendesk Explore or You otherwise subscribe to or utilize Zendesk Explore as a Service, the following Supplemental Terms apply:
939 The definition of “Software” in the Agreement shall include connectors that are used by You to connect Your data sources to Zendesk Explore or that allow You to use any functionality in connection with Zendesk Explore. The definition of “Software” in the Agreement shall include connectors that are used by You to connect Your data sources to Zendesk Explore or that allow You to use any functionality in connection with Zendesk Explore.
940 Use of Zendesk Explore may be subject to the obligation to pay applicable usage fees, platform fees and other applicable data storage charges as detailed on the Site. By enabling or otherwise using Zendesk Explore, You are agreeing to pay all applicable fees and charges, through Reseller, with Your use of Zendesk Explore. Use of Zendesk Explore may be subject to the obligation to pay applicable usage fees, platform fees and other applicable data storage charges as detailed on the Site. By enabling or otherwise using Zendesk Explore, You are agreeing to pay all applicable fees and charges, through Reseller, with Your use of Zendesk Explore.
941 Supplemental Terms for Certain Zendesk Deployed Associated Services (Add-Ons): Supplemental Terms for Certain Zendesk Deployed Associated Services (Add-Ons):
942 For Subscribers who have purchased or been given access to the Deployed Associated Services listed below, there are Supplemental Terms which will supplement the Agreement: For Subscribers who have purchased or been given access to the Deployed Associated Services listed below, there are Supplemental Terms which will supplement the Agreement:
943 Light Agent Associated Deployed Service for Zendesk Support Light Agent Associated Deployed Service for Zendesk Support
944 High Volume API Associated Deployed Service for Zendesk Support High Volume API Associated Deployed Service for Zendesk Support
945 Data Center Location Associated Deployed Service for Zendesk Support Data Center Location Associated Deployed Service for Zendesk Support
946 Priority Customer Support Associated Deployed Service for Zendesk Support Priority Customer Support Associated Deployed Service for Zendesk Support
947 Advanced Security Associated Deployed Service for Zendesk Support Advanced Security Associated Deployed Service for Zendesk Support
948 Supplemental Terms for Zendesk’s API and SDKs: Supplemental Terms for Zendesk’s API and SDKs:
949 If You use or access any API for the purpose of developing, implementing and Publishing Applications (as defined in the API Agreement), You hereby agree that Your use shall be governed by the Application Developer and API License Agreement (“API Agreement”). Further, if You use or access any SDK (defined below), You hereby agree that Your use of the SDK shall be governed by the API Agreement, in addition to this Agreement. “SDK” means any software development kit related to a Service developed by Zendesk and made available to You. If You use or access any API for the purpose of developing, implementing and Publishing Applications (as defined in the API Agreement), You hereby agree that Your use shall be governed by the Application Developer and API License Agreement (“API Agreement”). Further, if You use or access any SDK (defined below), You hereby agree that Your use of the SDK shall be governed by the API Agreement, in addition to this Agreement. “SDK” means any software development kit related to a Service developed by Zendesk and made available to You.
950 Supplemental Terms for Zendesk’s Marketplace: Supplemental Terms for Zendesk’s Marketplace:
951 If You use or access the Marketplace, as available in Your Account and at https://www.zendesk.com/apps/ , You hereby agree to the Marketplace Terms of Use (the “Marketplace Terms”). As described in the Marketplace Terms, certain additional terms may apply to Your use of Applications (as defined in the Marketplace Terms). If You use or access the Marketplace, as available in Your Account and at https://www.zendesk.com/apps/ , You hereby agree to the Marketplace Terms of Use (the “Marketplace Terms”). As described in the Marketplace Terms, certain additional terms may apply to Your use of Applications (as defined in the Marketplace Terms).
952 SUPPLEMENTAL TERMS AND CONDITIONS SUPPLEMENTAL TERMS AND CONDITIONS
953 SECTION 2: HOW WE PROTECT YOUR SERVICE DATA SECTION 2: HOW WE PROTECT YOUR SERVICE DATA
954 The Zendesk Group is committed to providing a robust and comprehensive security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary. The Zendesk Group is committed to providing a robust and comprehensive security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary.
955 Security Measures Utilized by Us Security Measures Utilized by Us
956 As provided for in Section 3.2 of the Agreement, We will abide by the these Security Measures to protect Your Service Data as is reasonably necessary to provide the Services: As provided for in Section 3.2 of the Agreement, We will abide by the these Security Measures to protect Your Service Data as is reasonably necessary to provide the Services:
957 1. Security Policies and Personnel. We have and will maintain a managed security program to identify risks, implement preventative technology as well as technology and processes for common attack mitigation. This program is and will be reviewed on a regular basis to provide for continued effectiveness and accuracy. We have, and will maintain, a full-time information security team responsible for monitoring and reviewing security infrastructure for Our networks, systems and services, responding to security incidents, and developing and delivering training to Our employees in compliance with Our security policies. 1. Security Policies and Personnel. We have and will maintain a managed security program to identify risks, implement preventative technology as well as technology and processes for common attack mitigation. This program is and will be reviewed on a regular basis to provide for continued effectiveness and accuracy. We have, and will maintain, a full-time information security team responsible for monitoring and reviewing security infrastructure for Our networks, systems and services, responding to security incidents, and developing and delivering training to Our employees in compliance with Our security policies.
958 2. Data Transmission. We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies) over the internet, except for certain Other Services that do not support encryption, which You may link to through the Services at Your election. 2. Data Transmission. We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies) over the internet, except for certain Other Services that do not support encryption, which You may link to through the Services at Your election.
959 3. Incident Response. We have an incident management process for security events that may affect the confidentiality, integrity, or availability of its systems or data. This process specifies courses of action, procedures for notification, escalation, mitigation, and documentation. The incident response program includes 24×7 centralized monitoring systems and on-call staffing to respond to service incidents. 3. Incident Response. We have an incident management process for security events that may affect the confidentiality, integrity, or availability of its systems or data. This process specifies courses of action, procedures for notification, escalation, mitigation, and documentation. The incident response program includes 24×7 centralized monitoring systems and on-call staffing to respond to service incidents.
960 4. Access Control and Privilege Management. We restrict access to customer production systems to operational personnel. We require such personnel to have unique IDs and associated cryptographic keys. These keys are used to authenticate and identify each person’s activities on Our systems, including access to Service Data. Upon hire, Our operational personnel are assigned unique keys. Upon termination, these keys are revoked. Access rights and levels are based on Our employees job function and role, using the concepts of least-privilege and need-to-know to match access privileges to defined responsibilities. 4. Access Control and Privilege Management. We restrict access to customer production systems to operational personnel. We require such personnel to have unique IDs and associated cryptographic keys. These keys are used to authenticate and identify each person’s activities on Our systems, including access to Service Data. Upon hire, Our operational personnel are assigned unique keys. Upon termination, these keys are revoked. Access rights and levels are based on Our employees job function and role, using the concepts of least-privilege and need-to-know to match access privileges to defined responsibilities.
961 5. Network Management and Security. The data centers utilized by Us maintain industry standard fully redundant and secure network architecture with reasonably sufficient bandwidth as well as redundant network infrastructure to mitigate the impact of individual component failure. Our security team utilizes industry standard utilities to provide defense against known common unauthorized network activity, monitors security advisory lists for vulnerabilities, and undertakes regular external vulnerability audits. 5. Network Management and Security. The data centers utilized by Us maintain industry standard fully redundant and secure network architecture with reasonably sufficient bandwidth as well as redundant network infrastructure to mitigate the impact of individual component failure. Our security team utilizes industry standard utilities to provide defense against known common unauthorized network activity, monitors security advisory lists for vulnerabilities, and undertakes regular external vulnerability audits.
962 6. Data Center Environment and Physical Security. The data center environments which are utilized by Us in connection with Our provision of the Service employ the following security measures: 6. Data Center Environment and Physical Security. The data center environments which are utilized by Us in connection with Our provision of the Service employ the following security measures:
963 A security organization responsible for physical security functions 24x7x365. A security organization responsible for physical security functions 24x7x365.
964 Access to areas where systems or system components are installed or stored within data centers is restricted through security measures and policies consistent with industry standards. Access to areas where systems or system components are installed or stored within data centers is restricted through security measures and policies consistent with industry standards.
965 N+1 uninterruptable power supply and HVAC systems, backup power generator architecture and advanced fire suppression. N+1 uninterruptable power supply and HVAC systems, backup power generator architecture and advanced fire suppression.
966 Technical and Organizational Security Measures for Third-Party Service Providers Technical and Organizational Security Measures for Third-Party Service Providers
967 As provided for in Section 3.5 of the Agreement, any third-party service providers that are utilized by the Zendesk Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to, among the other requirements in Section 3.5, their implementing and maintaining compliance with the following appropriate technical and organizational security measures: As provided for in Section 3.5 of the Agreement, any third-party service providers that are utilized by the Zendesk Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to, among the other requirements in Section 3.5, their implementing and maintaining compliance with the following appropriate technical and organizational security measures:
968 1. Physical Access Controls. Third-party service providers shall take reasonable measures to prevent physical access, such as security personnel and secured buildings and factory premises, to prevent unauthorized persons from gaining access to data processing systems in which Service Data is Processed. 1. Physical Access Controls. Third-party service providers shall take reasonable measures to prevent physical access, such as security personnel and secured buildings and factory premises, to prevent unauthorized persons from gaining access to data processing systems in which Service Data is Processed.
969 2. System Access Controls. Third-party service providers shall take reasonable measures to prevent data processing systems from being used without authorization. These controls shall vary based on the nature of Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels. 2. System Access Controls. Third-party service providers shall take reasonable measures to prevent data processing systems from being used without authorization. These controls shall vary based on the nature of Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels.
970 3. Data Access Controls. Third-party service providers shall take reasonable measures to provide that Service Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to access Service Data only have access to Service Data to which they have privilege of access; and, that Service Data cannot be read, copied, modified or removed without authorization in the course of Processing. 3. Data Access Controls. Third-party service providers shall take reasonable measures to provide that Service Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to access Service Data only have access to Service Data to which they have privilege of access; and, that Service Data cannot be read, copied, modified or removed without authorization in the course of Processing.
971 4.Transmission Controls. Third-party service providers shall take reasonable measures to ensure that it is possible to check and establish to which entities the transfer of Service Data by means of data transmission facilities is envisaged so Service Data cannot be read, copied, modified or removed without authorization during electronic transmission or transport. 4.Transmission Controls. Third-party service providers shall take reasonable measures to ensure that it is possible to check and establish to which entities the transfer of Service Data by means of data transmission facilities is envisaged so Service Data cannot be read, copied, modified or removed without authorization during electronic transmission or transport.
972 5. Input Controls. Third-party service providers shall take reasonable measures to provide that it is possible to check and establish whether and by whom Service Data has been entered into data processing systems, modified or removed; and, any of transfer of Service Data to a third-party service providers is via secure file transfer. 5. Input Controls. Third-party service providers shall take reasonable measures to provide that it is possible to check and establish whether and by whom Service Data has been entered into data processing systems, modified or removed; and, any of transfer of Service Data to a third-party service providers is via secure file transfer.
973 6. Data Protection. Third-party service providers shall take reasonable measures to provide that Service Data is secured to protect against accidental destruction or loss. 6. Data Protection. Third-party service providers shall take reasonable measures to provide that Service Data is secured to protect against accidental destruction or loss.
974 7. Logical Separation. Third-party service providers shall logically segregate Service Data from the data of other parties on its systems to ensure that Service Data may be Processed separately. 7. Logical Separation. Third-party service providers shall logically segregate Service Data from the data of other parties on its systems to ensure that Service Data may be Processed separately.
975 SUPPLEMENTAL TERMS AND CONDITIONS SUPPLEMENTAL TERMS AND CONDITIONS
976 SECTION 3: COUNTRY-SPECIFIC TERMS SECTION 3: COUNTRY-SPECIFIC TERMS
977 Japan: Japan:
978 You agree that you are responsible for notifying the End-Users using our Services via your Account about how the Zendesk Group may use End-Users’ Personal Data as described in this Policy and obtaining prior consent from End-Users to disclose their Personal Data to us. You agree that you are responsible for notifying the End-Users using our Services via your Account about how the Zendesk Group may use End-Users’ Personal Data as described in this Policy and obtaining prior consent from End-Users to disclose their Personal Data to us.
979 Brazil: Brazil:
980 Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in accordance with Brazilian Law No. 12,965/2014. By using our Services you expressly consent to the collection, use, storage and processing of your Personal Data by us as described. Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in accordance with Brazilian Law No. 12,965/2014. By using our Services you expressly consent to the collection, use, storage and processing of your Personal Data by us as described.
981 Australia: Australia:
982 Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the Australian Privacy Act 1988 (Commonwealth) and the Australia Privacy Principles as we further detail here . If you are dissatisfied with our handling of a complaint or do not agree with the resolution proposed by us, you may make a complaint to the Office of the Australian Information Commissioner (OAIC) by contacting the OAIC using the methods listed on their website . Alternatively, you may request that we pass on the details of your complaint to the OAIC directly. Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the Australian Privacy Act 1988 (Commonwealth) and the Australia Privacy Principles as we further detail here . If you are dissatisfied with our handling of a complaint or do not agree with the resolution proposed by us, you may make a complaint to the Office of the Australian Information Commissioner (OAIC) by contacting the OAIC using the methods listed on their website . Alternatively, you may request that we pass on the details of your complaint to the OAIC directly.
983 New Zealand: New Zealand:
984 Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the New Zealand’s Privacy Act (1993) and its 12 Information Privacy Principles (NZ IPPs) as we further detail here . Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the New Zealand’s Privacy Act (1993) and its 12 Information Privacy Principles (NZ IPPs) as we further detail here .
985 Singapore: Singapore:
986 Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the Zendesk Group’s obligations under the Personal Data Protection Act 2012 of Singapore (“PDPA”) as we further detail here . Personal Data collected, stored, used and/or processed by the Zendesk Group, as described in this Policy, is collected, stored, used and/or processed in compliance with the Zendesk Group’s obligations under the Personal Data Protection Act 2012 of Singapore (“PDPA”) as we further detail here .
987 Canada: Canada:
988 Personal Data (as the term is defined in the Personal Information Protection and Electronic Documents Act of Canada (PIPEDA)) will be collected, stored, used and/or processed by the Zendesk Group in compliance with the Zendesk Group’s obligations under PIPEDA. Personal Data (as the term is defined in the Personal Information Protection and Electronic Documents Act of Canada (PIPEDA)) will be collected, stored, used and/or processed by the Zendesk Group in compliance with the Zendesk Group’s obligations under PIPEDA.
989 SUPPLEMENTAL TERMS AND CONDITIONS SUPPLEMENTAL TERMS AND CONDITIONS
990 SECTION 4: CONSULTING SERVICES SECTION 4: CONSULTING SERVICES
991 If Subscriber has engaged Zendesk for the provision of professional services (including any Training, Success or Implementation Services, “Consulting Services”) as indicated on a Order Form, the provision of such Consulting Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Consulting Services must be scheduled for completion by Subscriber within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Zendesk, intending to be legally bound, agree to the terms set forth below. If Subscriber has engaged Zendesk for the provision of professional services (including any Training, Success or Implementation Services, “Consulting Services”) as indicated on a Order Form, the provision of such Consulting Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Consulting Services must be scheduled for completion by Subscriber within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Zendesk, intending to be legally bound, agree to the terms set forth below.
992 1. Scope. All Consulting Services pursuant to the Agreement provided by Zendesk to Subscriber will be outlined in one or more in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of services to be. 1. Scope. All Consulting Services pursuant to the Agreement provided by Zendesk to Subscriber will be outlined in one or more in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of services to be.
993 2. Retention. Subscriber hereby retains Zendesk to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Zendesk shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”). 2. Retention. Subscriber hereby retains Zendesk to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Zendesk shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).
994 3. Performance of Consulting Services. 3. Performance of Consulting Services.
995 3.1 Each SOW will include reasonable details, at a minimum, about the Consulting Services, Fees charged and the qualified employees and/or non-employee contractors of Zendesk (“Subcontractors” and together with Zendesk’s employees for the purposes of these Supplemental terms, “Consulting Services Personnel”) employed in performing the Consulting Services. Zendesk and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner. 3.1 Each SOW will include reasonable details, at a minimum, about the Consulting Services, Fees charged and the qualified employees and/or non-employee contractors of Zendesk (“Subcontractors” and together with Zendesk’s employees for the purposes of these Supplemental terms, “Consulting Services Personnel”) employed in performing the Consulting Services. Zendesk and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
996 3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Subscriber’s Representative” and “Zendesk’s Representative”, respectively). Any Subcontractor (defined below) designated by Zendesk to perform any portion of the Consulting Services will designate a representative to interface with Subscriber and Zendesk on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”). 3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Subscriber’s Representative” and “Zendesk’s Representative”, respectively). Any Subcontractor (defined below) designated by Zendesk to perform any portion of the Consulting Services will designate a representative to interface with Subscriber and Zendesk on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”).
997 3.3 Zendesk will perform the Consulting Services, directly or through a Subcontractor of its choice. Subscriber agrees to provide, at no cost to Zendesk, timely and adequate assistance and other resources reasonably requested by Zendesk to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Zendesk, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder. 3.3 Zendesk will perform the Consulting Services, directly or through a Subcontractor of its choice. Subscriber agrees to provide, at no cost to Zendesk, timely and adequate assistance and other resources reasonably requested by Zendesk to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Zendesk, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder.
998 3.4 In performing the Consulting Services, Zendesk will provide such resources, and utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Zendesk’s election of Subcontractors by specifying its objection to Zendesk, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Zendesk may replace Consulting Services Personnel in its normal course of business, provided that Zendesk will be responsible for the performance of Consulting Services by all Consulting Services Personnel. 3.4 In performing the Consulting Services, Zendesk will provide such resources, and utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Zendesk’s election of Subcontractors by specifying its objection to Zendesk, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Zendesk may replace Consulting Services Personnel in its normal course of business, provided that Zendesk will be responsible for the performance of Consulting Services by all Consulting Services Personnel.
999 3.5 Zendesk will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. Zendesk will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Zendesk’s obligations under the Agreement in accordance with its terms. 3.5 Zendesk will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. Zendesk will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Zendesk’s obligations under the Agreement in accordance with its terms.
1000 3.6 With Subscriber’s approval, Zendesk may enter (“assume into”) Subscriber’s Account as needed to provide the Consulting Services. 3.6 With Subscriber’s approval, Zendesk may enter (“assume into”) Subscriber’s Account as needed to provide the Consulting Services.
1001 3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW (including but not limited to any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Zendesk. If Zendesk elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Zendesk shall be entitled to an adjustment in Fees pursuant to the changes reflected in the Change Order. Zendesk shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order. 3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW (including but not limited to any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Zendesk. If Zendesk elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Zendesk shall be entitled to an adjustment in Fees pursuant to the changes reflected in the Change Order. Zendesk shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.
1002 3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Zendesk shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days after the date of the Completion Notice to provide Zendesk with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based. 3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Zendesk shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days after the date of the Completion Notice to provide Zendesk with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based.
1003 4. Fees; Payment Terms. 4. Fees; Payment Terms.
1004 4.1 Subscriber will pay Zendesk the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Zendesk shall invoice Subscriber for the Services provided on a monthly basis. All Fees are due and payable upon date of invoice, except for Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice. 4.1 Subscriber will pay Zendesk the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Zendesk shall invoice Subscriber for the Services provided on a monthly basis. All Fees are due and payable upon date of invoice, except for Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice.
1005 4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Zendesk will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Zendesk will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order. 4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Zendesk will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Zendesk will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order.
1006 4.3 The performance of Consulting Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Fees which become payable by Subscriber . Zendesk may refuse to perform Consulting Services unless and until such retainer is paid to Zendesk. 4.3 The performance of Consulting Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Fees which become payable by Subscriber . Zendesk may refuse to perform Consulting Services unless and until such retainer is paid to Zendesk.
1007 4.4 In addition to any and all Fees, Subscriber will reimburse Zendesk for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations resulting from Subscriber’s request,. incurred by Zendesk in connection with providing the Consulting Services (“Expenses”). Zendesk will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Zendesk for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Zendesk. 4.4 In addition to any and all Fees, Subscriber will reimburse Zendesk for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations resulting from Subscriber’s request,. incurred by Zendesk in connection with providing the Consulting Services (“Expenses”). Zendesk will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Zendesk for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Zendesk.
1008 4.5 Any unpaid Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and one and a half percent (1.5%) per month for each month where payment is not received. 4.5 Any unpaid Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and one and a half percent (1.5%) per month for each month where payment is not received.
1009 4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed services commencement date are subject to forfeiture of fees paid and reserved date(s). 4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed services commencement date are subject to forfeiture of fees paid and reserved date(s).
1010 5. Relationship of the Parties. Zendesk is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Zendesk at no time will hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Fees, Expenses or other amounts paid by Subscriber to Zendesk hereunder shall not be considered salary for pension or wage tax purposes and neither Zendesk nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law. 5. Relationship of the Parties. Zendesk is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Zendesk at no time will hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Fees, Expenses or other amounts paid by Subscriber to Zendesk hereunder shall not be considered salary for pension or wage tax purposes and neither Zendesk nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
1011 6. Warranties, Limitation of Liability. 6. Warranties, Limitation of Liability.
1012 6.1 Zendesk hereby represents and warrants that: 6.1 Zendesk hereby represents and warrants that:
1013 the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Zendesk and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Zendesk’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Fees paid to Zendesk by Subscriber for the nonconforming portion of the Consulting Services; and the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Zendesk and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Zendesk’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Fees paid to Zendesk by Subscriber for the nonconforming portion of the Consulting Services; and
1014 it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services. it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
1015 6.2 NOTWITHSTANDING SECTION 9.2 OF THE AGREEMENT, THE ZENDESK GROUP’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY SUBSCRIBER PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 6.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF THE ZENDESK GROUP WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. ZENDESK HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE SUBSCRIBER WITH THE CONSULTING SERVICES PROVIDED UNDER THE AGREEMENT. 6.2 NOTWITHSTANDING SECTION 9.2 OF THE AGREEMENT, THE ZENDESK GROUP’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY SUBSCRIBER PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 6.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF THE ZENDESK GROUP WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. ZENDESK HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE SUBSCRIBER WITH THE CONSULTING SERVICES PROVIDED UNDER THE AGREEMENT.
1016 6.3 The Parties hereby agree that: 6.3 The Parties hereby agree that:
1017 CUSTOMIZED DELIVERABLES, SUCH AS, BUT NOT LIMITED TO, CUSTOM APPLIC