I. Pursuant to the Enterprise Client Order Form between Zirtue and Enterprise Client, Zirtue and Enterprise Client wish to enter into a strategic alliance to market and perform certain complementary payment remittance services whereby Zirtue will use its platform to facilitate payments from consumers of Enterprise Client’s products and services (“Client Customers”) directed to Zirtue on behalf of Enterprise Client (the “Zirtue Payment Services”).Client Customers who choose to use Zirtue’s Payment Services are referred to as “Account Holders.”
II. In exchange for Zirtue providing the Zirtue Payment Services for Enterprise Client, Zirtue shall receive a fee on a per transaction basis which shall be a percentage of the total paid by an Account Holder to Enterprise Client as defined in the Enterprise Client Order Form (“Success Fee”).
III. Terms not defined in these terms and conditions are defined in the Enterprise Client Order Form.
1.1 Subject to and conditioned on Enterprise Client’s compliance with the terms and conditions of this Agreement, Zirtue hereby grants Enterprise Client a non-exclusive, non-transferable license to:
(a) access and use the Zirtue platform (the “Platform”), including the Zirtue Payment Services, (collectively, the “Services”) during the Term, solely by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Enterprise Client’s and its affiliates’ sole use and Enterprise Client may not provide access to third parties. “Authorized User” means Enterprise Client’s or its affiliates’ employees, consultants, contractors, and agents who are authorized by Enterprise Client or its affiliates to access and use the Services under the rights granted to Enterprise Client pursuant to this Agreement. For the purposes of this Agreement, the term “Enterprise Client” shall include its affiliates and its and their Authorized Users. The total number of Authorized Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the parties;
(b) demonstrate and market the Zirtue payment products to Client Customers;
(c) use the Zirtue trademarks, service marks, trade names, and logos (“Zirtue Marks”), and reproduce and distribute marketing materials, solely to market and promote the Zirtue services under this Agreement.
1.2 Delivery. Zirtue shall deliver access to the Services to Enterprise Client within three (3) days following the Effective Date.
1.3 Changes to Services. Zirtue reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Zirtue’s services to its customers; (ii) thecompetitive strength of or market for Zirtue’s services; or (iii) the Services’ cost efficiency or performance; or (b) comply with applicable law; provided, however, any changes shall not materially diminish the features functionality of the Services.
provided, however, any changes shall not materially diminish the features or functionality of the Services.
1.4 Zirtue APIs. Zirtue hereby grants Enterprise Client a non-exclusive, non-sublicensable, non-transferable limited license to use Zirtue’s APIs exclusively for the benefit of Zirtue Account Holders. Enterprise Client hereby assumes all liability as a result of any use of the APIs. Zirtue makes no commitment to continued availability of APIs and Enterprise Client has no rights to version enhancement or support of any kind. Zirtue may revise or cease to provide APIs without notice at any time in Zirtue's sole discretion. NOTWITHSTANDING THE FOREGOING, COPYING OR REPRODUCTION OF THE APIS FOR FURTHER REDISTRIBUTION IS EXPRESSLY PROHIBITED.
1.5 Zirtue Obligations. During the Term, Zirtue shall free of charge (a) provide to Enterprise Client such information and marketing support as Enterprise Client may reasonably request regarding the marketing of the Zirtue Payment Services; and (b) provide such marketing materials as Zirtue, in its reasonable discretion, may deem appropriate for Enterprise Client's marketing of the Zirtue Payment Services in accordance with this Agreement.
1.6 Support and Training. Zirtue shall provide Enterprise Client with support and training services in support of the Services during the Term in accordance with the Order Form.
1.7 No Implied Rights. Zirtue reserves all rights not expressly granted to Enterprise Client in this Agreement.Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Enterprise Client or any third party any intellectual rights or other right, title, or interest in or to any of the Services or other Zirtue intellectual property. Nothing in this Agreementgrants or conveys, or permits Enterprise Client to grant or convey, any ownership right in any of the Services orother Zirtue intellectual property.
1.8 Location of Account Holders. Zirtue limits its Zirtue Payment Services to individuals residing in the UnitedStates. Enterprise Client agrees that it will not offer or market the Zirtue Payment Services to any client customers that are outside of the United States.
1.9 Enterprise Client’s use of the Services are governed by this Agreement, as well as the Zirtue Enterprise Client Portal terms of service for use by Authorized Users (the “Terms of Service”), which Zirtue may update from time time without notice to Enterprise Client, provided that the updated Terms of Service will not apply to Enterprise Client until Zirtue has provided 10 business days’ prior notice. The Terms of Service as of the Effective Date attached as Exhibit 1. In the event of any inconsistency or conflict between the Terms of Service and this Agreement,the terms of this Agreement shall prevail.
2.1 Account Holder Provision and Services. Enterprise Client shall take all steps it deems necessary to market and promote the Zirtue Payment Services for Client Customers as an alternative payment solution. Enterprise Client shall have ultimate responsibility for Client Customers that it elects to bill directly and offer Zirtue Payment Services as an alternative payment solution. Zirtue will perform, schedule, automate and manage all Zirtue Payment Services. Any engagement with Account Holders to perform Zirtue Payment Services shall be on such terms and conditions as Zirtue may approve in its sole discretion.
2.2 License for Enterprise Client Trademarks. Enterprise Client grants to Zirtue a non-exclusive, non-transferable, limited, revocable license to use Enterprise Client’s affiliates’ names and logos (“Enterprise Client Marks”) throughout the Term for purpose of offering Zirtue Payment Services to Client Customers. Enterprise Client will provide to Zirtue images and logos of Enterprise Client Marks for Zirtue to use to offer Zirtue Payment Services and market Zirtue’s platform to Enterprise Client’s affiliates’ Account Holders only. Enterprise Client may review, modify or reject marketing materials that include Enterprise Client Marks.
2.3 Restrictions. Enterprise Client shall not use the Services for any purposes beyond the scope of the license granted in this Agreement. Except as otherwise expressly set forth in this Agreement, Enterprise Client shall not at any time: (A) copy, modify, or create derivative works of the Services, in whole or in part; (B) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (C) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the platform, in whole or in part; or (D) remove any proprietary notices from the Services.
2.4 Trademark Use Restrictions. All uses of each party’s Marks, and all goodwill associated therewith, will inure solely to the benefit of that party. Neither party shall use any of the other party’s Marks (whether individually or incombination, or in whole or in part): (A) in or in connection with the advertising, promotion, marketing, ordistribution of any goods, services, or technologies other than the Services under this Agreement as components ofthe Services; (B) as part of their corporate or trade name or any domain name; (C) in any way that is likely to causeconfusion, mistake, or deception; or (D) in any way that is likely to dilute, tarnish, or otherwise diminish the otherparty’s Marks' distinctiveness, or jeopardize the reputation of or goodwill associated with the other party’s Marksor Services or the validity of the other party’s ownership of their Marks or the registrations therefor.
2.5 Compliance with Applicable Laws. Enterprise Client represents, covenants, and warrants that Enterprise Client will use the Services only in compliance with the Terms and Conditions provided to it by Zirtue. Zirtue represents, covenants and warrants that (i) the Services and Enterprise Client’s permitted use thereof, shall fully comply with all applicable laws, regulations and rules, and (ii) Zirtue will fully comply with all Texas Laws (defined below) and other laws, regulations and rules applicable to Enterprise Client that relate to Enterprise Client Data orother Proprietary Information of Enterprise Client (including, without limitation, relating to the Personal Information of all Client Customers and Account Holders). Although Zirtue has no obligation to monitor Enterprise Client’s use of the Services, Zirtue may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.6 Enterprise Client Equipment. Enterprise Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Enterprise Client shall also be responsible for maintaining the security of the Equipment, Enterprise Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Enterprise Client’s account or the Equipment with or without Enterprise Client’s knowledge or consent; provided, however, Enterprise Client will not be responsible for uses of Enterprise Client’s account after Enterprise Client has notified Zirtue of a security incident with respect to such account or a particular password.
2.7 Enterprise Client Systems. Enterprise Client shall at its discretion during the Term: (a) set up, maintain, and operate in good repair all Enterprise Client Systems (as defined in Section 3 below) on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as Zirtue may reasonably request to enable Zirtue to exercise its rights and perform its obligations under and in connection with this Agreement.
2.8 Enterprise Client Data. Zirtue will use Enterprise Client Data (as defined in Section 4.1) that Enterprise Client submits through the Services only to provide the Services, and will not disclose or make accessible or available any Enterprise Client Data to any person or entity. Enterprise Client shall have the sole responsibility and liability for the accuracy, quality, and legality of Enterprise Client Data.
2.9 Effect of Failure or Delay. Zirtue is not responsible or liable for any delay or failure of performance caused in whole or in part by Enterprise Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.
2.10 Intentionally Omitted.
3.1 Standards. Zirtue will employ security measures in accordance with applicable industry practice and standards, applicable laws, rules, and regulations.
3.2 Enterprise Client Data and Systems. Enterprise Client has and will retain sole responsibility for: (a) allEnterprise Client Data (excluding Enterprise Client Data received by Zirtue through the Services or otherwise),including its content and use; (b) all information, instructions, and materials provided by or on behalf of EnterpriseClient in connection with the Services; (c) Enterprise Client’s information technology infrastructure, includingcomputers, software, databases, electronic systems (including database management systems), and networks,whether operated directly by Enterprise Client or through the use of third-party services (“Enterprise ClientSystems”); (d) the security and use of Enterprise Client’s access credentials; and (e) all access to and use of theServices directly or indirectly by or through the Enterprise Client Systems or its access credentials, with or withoutEnterprise Client’s knowledge or consent.
3.3 Enterprise Client Security Standards. Enterprise Client shall employ commercially reasonable physical, administrative, and technical controls, screening, and security procedures and other safeguards it may deem appropriate, which are designed to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Enterprise Client Data, including the uploading or other provision of Enterprise Client Data for processing by the Services.
4.1 Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, pricing information, compensation information, know-how, compilations, processes, data protection, or financial information relating to the DisclosingParty’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Zirtue includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Enterprise Client includes, without limitation, all data relating to Client Customers, including Account Holders, or provided by Enterprise Client (or its Client Customers, Account Holders or any person or entity affiliated with Enterprise Client) to Zirtue (whether through the Platform, Services or otherwise) to enable the provision of the Services, including without limitation data and Personal Information relating to Client Customers or Account Holders (“Enterprise Client Data”). “Personal Information” means anydata or information that identifies, relates to, describes, is capable of being associated with, or could reasonably belinked, directly or indirectly to, a natural person, entity, address or meter, including without limitation informationthat meets the definition of “personal information,” “personal data,” “personally identifiable information,” “sensitivepersonal information” or similar term under applicable federal, state and international data privacy law, regulationor guidance, including but not limited to (i) all rules, regulations and orders promulgated by the Public UtilityCommission of Texas, and the Substantive Rules Applicable to Electric Service Providers under the TexasAdministrative Code (collectively, “Texas Laws”), (ii) the California Consumer Privacy Act (Cal. Civ. Code § 1798.100et. seq.), as amended, (iii) all federal and provincial Canadian law, and/or all information, the unauthorized accessto, or disclosure or acquisition of, which would trigger notification obligations to any consumer, regulatory authorityor payment card issuer or association under applicable law or industry self-regulatory standard. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person or entity any such Proprietary Information. Except with regard to Enterprise Client Data, Proprietary Information of Enterprise Client, or the Personal Information of Client Customers and Account Holders, the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. The obligation to protect Personal Information will continue for as long as that Personal Information is in the Receiving Party’s possession.
4.2 Enterprise Client Data Ownership. Enterprise Client shall own all right, title and interest in and to the Enterprise Client Data and all Enterprise Client Systems. Enterprise Client hereby permits Zirtue a limited right to use only that Enterprise Client Data as is necessary for Zirtue to perform the Services, enforce this Agreement and perform Zirtue’s obligations hereunder.
4.3 Zirtue Intellectual Property. Zirtue, or its third-party licensors, shall own and retain all right, title and interest in and to (a) the Services and its software, all improvements, enhancements or modifications thereto, and (b) all intellectual property rights related to any of the foregoing. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to the Services whether expressly, by implication, estoppel, or otherwise.
4.4 Resultant Data. Subject to all applicable laws, regulations and rules, including without limitation Texas Laws,Zirtue shall have the right to collect and analyze data and other information relating to and solely for the purpose ofthe provision, use and performance of various aspects of the Services and related systems and technologies(including, without limitation, information concerning Enterprise Client Data and data derived therefrom such asusage reports and user statistics, provided that all such data and derivatives thereof are aggregated, de-identifiedand anonymized, and contain no Personally Identifiable Information relating to Client Customers (“ResultantData”)), and Zirtue will be free during and after the Term hereof to (i) use Resultant Data to improve and enhancethe Services and for other development, diagnostic and corrective purposes in connection with the Services andother Zirtue offerings, and (ii) disclose Resultant Data solely in aggregate or other de-identified form in connectionwith its business. No rights or licenses are granted except as expressly set forth herein.
5.1 Collections of Payments to Enterprise Client. Zirtue collects payments from Account Holders on behalf of Enterprise Client. Upon authorization from Account Holder, Zirtue shall transmit Account Holder’s funds to Enterprise Client and Enterprise Client shall credit the Enterprise Client’s Client Customer account for the amount of funds transferred, so that the Account Holder receives the full value of the payments they made through ZirtuePayment Services. For example, if an Account Holder has an outstanding balance with Enterprise Client of $100.00 and the Account Holder uses Zirtue to borrow $100.00 to pay Enterprise Client, the Enterprise Client shall credit the Account Holder’s Client Customer account with $100.00. If the Success Fee is 5%, Zirtue will add $5 to the Account Holders loan amount making the total loan amount $105.00 and Zirtue will deduct $5 prior to sending principal payment amount ($100) to Enterprise Client.
5.2 Payment to Enterprise Client. Account Holders may make payments by debit card, ACH, or other payment method agreed to by Zirtue. Account Holder payments via automated clearing house (ACH) shall be paid to Enterprise Client by Zirtue in approximately 2-4 business days after payment to Zirtue while debit card or creditcard payments shall be paid to Enterprise Client by Zirtue in approximately 1 business day.
5.3 Chargebacks. Any chargebacks or refund requests by an Account Holder of all or any portion of a payment intended for Enterprise Client made through Zirtue shall not affect any payment that has already been made to Enterprise Client by Zirtue. Any dispute for chargebacks or refund requests shall be determined only between Account Holder and Zirtue.
5.4 Audit Rights and Required Records. Zirtue agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the terminationor expiration of this Agreement (or a longer period if required under Texas Laws) with respect to matters necessary for accurately determining amounts paid by Account Holders hereunder. Enterprise Client may, at its own expense, on fifteen (15) days’ prior notice, periodically inspect and audit Zirtue’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Zirtue has underpaid Enterprise Client with respect to any amounts collected by Zirtue on behalf of Enterprise Client during the Term, Zirtue shall promptly pay the amounts necessary to rectify such underpayment at a reduced Success Fee of 1% per transaction. Zirtue shall pay for the costs of the audit if the audit determines that Zirtue's underpayment equals or exceeds 5% of total amounts owed for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two years after the termination or expiration of this Agreement.
6.1 Subject to earlier termination as provided below, this Agreement begins as of the Effective Date and continues in full force until either party terminates the Agreement under Section 6.2 (collectively, the “Term”).
6.2 Termination. Either Party may terminate this Agreement:
(a) for convenience, for any reason or no reason, upon thirty (30) days prior written notice to the other party;
(b) effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured fifteen (15) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, ifthe other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they becomedue; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomessubject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy orinsolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) appliesfor or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court ofcompetent jurisdiction to take charge of or sell any material portion of its property or business.
6.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement,: (i) all licenses granted to then-existing Account Holders survive in accordance with their terms; (ii) all licenses granted to Enterprise Client hereunder will expire or terminate; and (iii) Enterprise Client shall cease all use of the Services, in whole and in part, including in any production, marketing, distribution, licensing, sale, maintenance, support, or use of the Services. Upon any termination or expiration, Zirtue will make all Enterprise Client Data available to Enterprise Client for electronic retrieval in a format requested by Enterprise Client for two (2) years. Thereafter Zirtue shall, unless retention is otherwise required by law, delete stored Enterprise Client Data. Termination of this Agreement will not release Zirtue from its obligation to pay to Enterprise Client all amounts due that are in Zirtue’s possession as of the termination effective date. If this Agreement is terminated by either Party under Section 6.2(a), the termination effective date will be extended an additional 30 days so that Enterprise Client customers who have received a communication from Enterprise Client regarding the Zirtue Payment Services have the opportunity to become Account Holders and make payments to Enterprise Client. Within 10 days after receiving a termination notice under Section 6.2 from Zirtue, Enterprise Client will cease sending notices to its customers regarding ZirtuePayment Services.
6.4 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, intellectual property, Enterprise Client audit rights, confidentiality obligations, warranty disclaimers, and limitations of liability, survival, effect of termination, and the Miscellaneous provisions under Section12.
7.1 Zirtue Limited Warranties
(a) Data Security Requirements. Except for violations that arise from breaches of material provisions of this Agreement or misuses of the Services by Entreprise Client, Zirtue warrants and represents that the Services shall comply with all applicable (i) laws regarding consumer protection and security of personally identifiable information (collectively, the “Data Security Laws”), and (ii) standards regarding the storing, processing or transmitting of payment and cardholder data (collectively, the “Data Security Standards”). The Data Security Laws and Data Security Standards are collectively referred to as the “Data Security Requirements” as they currently exist or may be updated from time to time during the term of this Agreement. Zirtue shall use best practices in the industry to comply with the Data Security Requirements and provide a secure environment for all data in its possession or processed by the Services.
(b) Material Performance. Zirtue warrants that the Services will perform materially as described by Zirtue during the Term of this Agreement.
(c)
(d) If, during the Term, any Services fail to comply with the warranties above, Zirtue shall, subject to Enterprise Client's reasonably prompt notification to Zirtue in writing after becoming aware of such failure, at its sole option, either: (i) repair the error, provided that Enterprise Client provides Zirtue with all information Zirtue reasonably requests which is in Enterprise Clients possession to resolve the reported failure, including sufficient information to enable the Zirtue to recreate such failure; or (ii) refund the Fees paid for such portion of the Services arising from the error. The remedies set forth in this Section 7(c) are EnterpriseClient’s sole remedies and Zirtue’s sole liability under the limited warranty set forth in Section 7(c).
7.2 Each party represents and warrants to the other party that (i) it is duly organized, validly existing, and ingood standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or otherorganization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant therights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii) theexecution of this Agreement by its representative whose signature is set forth at the end of this Agreement has beenduly authorized by all necessary corporate or organizational action of such party; and (iv) when executed anddelivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party,enforceable against such party in accordance with its terms.
7.3 Zirtue shall use reasonable efforts consistent with prevailing industry standards to maintain and perform the Services in a manner which minimizes errors and interruptions in the Services and in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Zirtue or by third-party providers, or because of other causes beyond Zirtue’s reasonable control, but Zirtue shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, ZIRTUE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND ZIRTUE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.4 Enterprise Client represents, warrants, and covenants to Zirtue that Enterprise Client owns or otherwise has and will have the necessary rights and consents in and relating to the Enterprise Client Data so that, as received by Zirtue and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
To the extent Enterprise Client provides suggestions, proposals, ideas, recommendations or other feedback regarding improvements to the Services and related resources, Enterprise Client grants to Zirtue a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into Zirtue’s core technology) without restriction or notice to Enterprise Client.
9.1 Each of Enterprise Client and Zirtue, at its own expense, shall indemnify, defend and hold the other, its partners, shareholders, directors, managers, members, officers, employees, and agents harmless from and against any and all third-party claims, suits, actions, investigations and proceedings, and related losses, damages, liabilities, costs and expenses (including reasonable attorney's fees) resulting therefrom which directly arise out of or result from the indemnifying party's negligence or willful misconduct, or material breach of any representation, warrantyor covenant contained herein. Neither Enterprise Client nor Zirtue shall be required hereunder to defend, indemnifyor hold harmless the other and/or its partners, shareholders, directors, officers, directors, employees and agents, or any of them, from any liability resulting from the negligence or wrongful acts of the party seeking indemnification or of any third-party.
9.2 Zirtue shall at its own expense indemnify, defend and hold harmless Enterprise Client and its partners, shareholders, directors, managers, members, officers, employees, and agents harmless from and against any and all third-party claims that arise out of or are related to any infringement or claim of infringement of any patent,copyright, trade secret or other proprietary right of a third party, which may be made against Enterprise Client by reason of any use by it of the Services provided by Zirtue hereunder. If as a result of any such claim, litigation orthreat thereof, Zirtue or Enterprise Client is enjoined from using the Services, Zirtue at its sole option and expense,may procure for Enterprise Client the right to continue to sue the Services or may replace or modify without changing the functionality of the Services so as to settle such claim, litigation or threat thereof. If such settlement and such modifications to the Services are not reasonably practicable in Zirtue’s sole opinion, then Zirtue may notifyEnterprise Consultant in writing to discontinue use of the Services and shall refund to Enterprise Participant all prepaid fees paid hereunder.
9.3 Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 9.1, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at Indemnitor’s sole cost and expense. Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If Indemnitor fails or refuses to assume control of the defense of such Action, Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such action after giving notice to Indemnitor, in each case in such manner and on such terms as Indemnitee may deem appropriate. Indemnitee’s failure to perform any obligations under this Section 9.2 will not relieve Indemnitor of its obligations under this Section 9, except to the extent that Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON,INDEMNIFICATION OBLIGATIONS, AND BREACH OF CONFIDENTIALITY OR DATA SECURITY, ZIRTUE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS,AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ZIRTUE’S REASONABLE CONTROL; OR(D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY ENTERPRISE CLIENT TO ZIRTUE FOR THE SERVICES UNDER THIS AGREEMENT IN THE ONE-DAYPERIOD PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ZIRTUE HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, INDEMNIFICATION OBLIGATIONS, AND BREACH OF CONFIDENTIALITY OR DATA SECURITY, ENTERPRISE CLIENT AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR ANY MATTER BEYOND ENTERPRISE CLIENT’S REASONABLE CONTROL; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY ENTERPRISE CLIENT TO ZIRTUE FOR THE SERVICES UNDER THIS AGREEMENT IN THE ONE-DAY PERIOD PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ENTERPRISE CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain consistent with the intent of the parties as of the Effective Date and in full force and effect and enforceable. Neither party shall assign or delegate this Agreement or any rights, duties or obligations hereunder to any other person and/or entity without prior express written approval of the other party. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement,the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to the Notice Addresses set forth in the Enterprise Client Order Form. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. The Parties hereby consent andsubmit to the exclusive jurisdiction and proper venue of any Federal or state court of competent jurisdiction within Dallas County, Texas with respect to any dispute arising hereunder or related hereto.
These terms of use are entered into by and between you (“you” and “your”) and Zirtue, Inc. ("Zirtue," "we," "our" or "us"). The following terms and conditions, together with any other documents expressly incorporated by reference (collectively, the “Terms of Use”), govern your access to and use of partners.zirtue.com as an authorized user of an Enterprise Client account,including any content, functionality, and services offered on or through partners.zirtue.com (the “Site”).
Please read the Terms of Use carefully before you start to use the Site. By using the Site or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use, the terms of the applicable Enterprise Client Agreement, any applicable Loan Payment Terms, and our Privacy Policy, incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Site.
By using the Site, you represent and warrant that you are of legal age to form a binding contract with Zirtue and meet all of the foregoing eligibility requirements. If you are using a Zirtue service or related services on behalf of a company or other entity, then “you” means that entity, you are binding that entity to these Terms of Use, you agree that you have the authority to bind such entity, and that entity agrees to these terms. If you do not meet all of these requirements, you must not access or use the Site.
We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Site thereafter. Your continued use of the Site following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
Subject to any applicable Enterprise Client Agreement, we reserve the right to withdraw or amend this Site, and any service or material we provide on the Site, in our sole discretion without notice. Unless we have an agreement that guarantees uptime, we will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to users, including registered users.
To access certain aspects of the Site and the services available, you may be asked to provide certain registration details or other information. It is a condition of your use of the Site that all the information you provide on the Site is correct, current, and complete. You agree that all information you provide to register with this Site or otherwise, including but not limited to through the use of any interactive features on the Site, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.
The Site and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Zirtue, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Site, except as contemplated for the purposes of the services offered by Zirtue, namely document drafting solutions and related services. You must not delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Site in breach of the Terms of Use, your right to use the Site will stop immediately, and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by Zirtue. Any use of the Site not expressly permitted by these Terms of Use or any other agreement between you and Zirtue is a breach of these Terms of Use and may violate copyright, trademark, and other laws.
You may use the Site only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Site:
• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the unauthorized practice of law).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” spam, or any other similar solicitation.
• To impersonate or attempt to impersonate Zirtue, a Zirtue employee, another user, or any other person or entity.
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm Zirtue or users of the Site or expose them to liability.
Additionally, you agree not to:
• Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’suse of the Site, including their ability to engage in real-time activities through the Site.
• Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
• Use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose without our prior written consent.
• Use any device, software, or routine that interferes with the proper working of the Site.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
• Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Site.
The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
This Site may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Zirtue, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Zirtue. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
We may update the content on the Site from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Site may be out of date at any given time. We expressly disclaim any liability for outdated information and recommend that you review any information carefully.
All information we collect on the Site is subject to our Privacy Policy. By using the Site, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
Additional terms and conditions may also apply to specific portions, services, or features of the Site, including any applicable Enterprise Client Agreement which forms the basis of your access to Zirtue. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use. In the event of any inconsistency or conflict between such documents and the Terms of Use, the Enterprise Client Agreement shall first prevail, then these Terms of Use.
Your access to Enterprise Client services is available through an Enterprise Client subscription plan and is subject to modification or termination of such master account. Additionally, we may terminate terms or suspend or terminate your Zirtue account or your access to any Service, at any time for any reason. We may add or remove, suspend, stop, delete, discontinue or impose conditions on Services or any feature or aspect of a Service. We will take reasonable steps to notify you of termination or these other types of Service changes by email or at the next time you attempt to access your Zirtue account. You may also terminate your account and these terms by deactivating your Zirtue account at any time.
If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
The owner of the Site is based in the state of Texas in the United States. We provide this Site for use only by persons located in the United States. We make no claims that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT. YOUR USE OF THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER ZIRTUE NOR ANY PERSON ASSOCIATED WITH ZIRTUE MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER ZIRTUE NOR ANYONE ASSOCIATED WITH ZIRTUE REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, ZIRTUE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL ZIRTUE, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, MANAGERS, MEMBERS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE,ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT,SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY,PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE),BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. LIMITATIONS OF DAMAGES ARE SUBJECT TO THOSE DAMAGES PERMISSIBLE UNDER THE ENTERPRISE CLIENT AGREEMENT BY WHICH YOUR USE OF THE ZIRTUE SERVICES IS PERMISSIBLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to defend, indemnify, and hold harmless Zirtue, its affiliates, licensors, and service providers, and its and their respective officers, managers, members, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Site, including, but not limited to, any use of the Site’s content, services, and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Site.
All matters relating to the Site and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).
Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Site shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in Dallas County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
At Zirtue’s sole discretion, it may require You to submit any disputes arising from the use of these Terms of Use or the Site, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Texas law.
No waiver by Zirtue of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Zirtue to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.
The Terms of Use, our Privacy Policy, and any applicable Subscription Agreement and EULA constitute the sole and entire agreement between you and Zirtue regarding the Site and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Site.
This website is operated by Zirtue Inc.
All other feedback, comments, requests for technical support, and other communications relating to the Site should be directed to: partners@zirtue.com.
