ZAYZOON CLIENT STANDARD TERMS - USA

THESE CLIENT STANDARD TERMS (“TERMS”) GOVERN THE USE OF AND ACCESS TO THE SOFTWARE SERVICE MADE AVAILABLE BY ZAYZOON US INC. (“ZAYZOON”) AT WWW.ZAYZOON.COM OR AT THE ZAYZOON MOBILE APPLICATION. BY EXECUTING AN ORDER FORM REFERENCING THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS AND THE ORDER FORM. 

CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN THE ORDER FORM.

ARTICLE 1 INTERPRETATION

1.1    Defined Terms. As used in this Agreement, the following terms have the following meanings: 

“Agreement” means these Terms, the Order Form, and the DPA.

“API” means an application programming interface.

“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, where “control” means ownership of more than fifty percent (50%) of the voting securities or equivalent ownership interests of such entity.

“Documentation” means any written or online descriptions of the functionality, technical requirements, or use of the Service made available by ZayZoon to Client.

“Earnings” means accrued but unpaid wages, salary, commissions, vacation pay, and other amounts owing by Client to a User for labor or services performed prior to Client’s next regularly scheduled payroll date, as determined in accordance with Client’s payroll records.

“Effective Date” means the date specified as such on the Order Form, or if no such date is specified, the date of the last signature on the Order Form.

“Force Majeure Event” means any event beyond a Party’s reasonable control, including acts of God, fire, flood, earthquake or other natural disasters, pandemic or epidemic, war (whether declared or undeclared), terrorism, civil unrest, government acts, orders or restrictions, embargoes, strikes or labor disputes (other than involving the affected Party’s own employees), failure or interruption of utilities or telecommunications, internet service provider failures or delays, and denial of service attacks.

“Client” means you, a US employer or entity that is otherwise contractually obligated to pay a worker a sum of money on an hourly, project-based, piecework, or other basis for labor or services provided by the worker.

“Client System” means the Client’s system for, where applicable, providing payroll settlement processing, time and attendance, scheduling, and other administrative services.

“Dashboard” means the ZayZoon employer dashboard which provides Client oversight of the Users’ use of the Service, including but not limited to the information set forth in Section 3.1(v) and the ability to register Users as terminated by Client.

“Data” has the meaning set forth in Section 4.3.

“DPA” means the Data Processing Agreement, as updated from time to time, and which can be found at www.zayzoon.com/dpa.

“Integrated Service” means the offered service arising as a result of the integration of the ZayZoon Service with the Client System.

“Materials” means the marketing materials developed and provided by ZayZoon. 

“Payout” means an amount issued by ZayZoon to a User through the ZayZoon Platform in respect of such User’s accrued and unpaid wages.

“Privacy Policy” means the privacy policy setting forth ZayZoon’s limited use of the Data, as updated from time to time, and which can be found at www.zayzoon.com/usaprivacy. 

“Repayment” means an amount equal to a Payout plus any associated processing fees.

“Service” means the Platform, Materials, ZayZoon API, Dashboard and any supporting documentation as may be provided to Client by ZayZoon for the purpose of providing Users with access to accrued but unpaid wages.

“User” has the meaning set forth in Section 4.1.

“ZayZoon” means ZayZoon US Inc., a Delaware corporation. ZayZoon is a service provider to employers that gives workers the ability to access their accrued but unpaid wages by requesting a Payout through a software service platform (“Platform”).

“ZayZoon API” means ZayZoon’s application programming interface.



ARTICLE 2
SERVICE AND INTEGRATION

2.1    Service Generally. ZayZoon will make the Service available to the Client and its Users following the successful integration of the Integrated Service until the termination by either Party in accordance with Article 6.  

2.2    Integration. The provision of the Service to the Users may require certain development work to integrate the Service with Client’s existing payroll system, including but not limited to activating the ZayZoon tile in Client’s employee self-serve portal, directing Client’s payroll provider to activate any available APIs required to activate the ZayZoon Service, and directing any applicable third party of the Client System to make the Data available to ZayZoon. For clarity, Client shall authorize any rights necessary for ZayZoon to access and use both the applicable APIs in the Client System and the Data. Client will provide, or cause to be provided, resources to meet the deliverables, as reasonably requested by ZayZoon, for the integration. Each of the Parties will from time to time execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out the integration of the Services. 



ARTICLE 3 USE OF THE SERVICE 

3.1    ZayZoon Responsibilities. ZayZoon shall: 

i.    provide the Service in accordance with all applicable laws and government regulations;

ii.    use commercially reasonable efforts to make the Service available at all times, except for planned downtime and any unavailability caused by a Force Majeure Event;

iii.    provide Client with support for Administrators (as defined in Section 3.2) and Users;

iv.    maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of the Service and any Client Data stored on, or accessible via, the Service; 

v.    provide Client, either through the Service or otherwise, with information regarding Users’ use of the Service, User authorization for any deductions arising from all Payouts and any associated transaction fee, and the status of User accounts (including, upon request by Client, when any User account is terminated by ZayZoon); and

vi.    ensure at all times during the Term that it will remain compliant with SOC2 Type 2 certification requirements.

3.2    Client Responsibilities. Client shall: 

i.    use the Services only in compliance with the terms of this Agreement and all applicable laws and regulations;

ii.    promote the availability of the Service to employees as set forth in the “rollout plan”, if any, and by, at a minimum, featuring ZayZoon no less prominently than other benefits offered by Client in all information provided to employees and prospects about Client benefits;

iii.    designate at least one (1) individual for the administration of the Service for Client and will have access to all related functions of the Service (“Administrator”);

iv.    provide, or authorize and direct Client’s payroll service to provide through the Client System, ZayZoon with current, accurate information about Earnings, including (when available) time and attendance, and scheduling information at the times and in the manner agreed by the Parties. Such information may be made available through the Client System.

v.    use commercially reasonable efforts to prevent unauthorized access to or use of the Service and notify ZayZoon immediately of any such unauthorized access or use of which Client becomes aware.

vi.    in the event that the Integrated Service, Client System, or Service experiences an outage, Client will reasonably assist ZayZoon in the manual processing of the data and funds flow, including but not limited to paying the aggregate amount of the Repayments to ZayZoon.  For clarity, this section is not intended to impose any liability or obligation on the Client to deliver to  ZayZoon any amounts that would not have been received by ZayZoon through the Integrated Service in the ordinary course of business, and is solely intended to apply in the event of a temporary disruption in the Integrated Service.

vii.    promptly notify ZayZoon upon Client learning of or deciding on any change, or anticipated change, in (i) the employment status of a User, including but not limited to the termination of such User’s employment, and (ii) Client’s payroll provider. Without limiting the foregoing, Client will notify ZayZoon not less than 90 days prior to changing payroll providers.  

viii.    not (a) sell, resell, rent or lease the Service except in accordance with the terms of this Agreement, (b) interfere with or disrupt the integrity or performance of the Service or any third-party data contained on the Service, including, as applicable, the third-party data of Client’s employees; (c) copy, modify, translate, or create derivative works of the Services or Materials; attempt to circumvent any license, timing or use restrictions that are built into the Services; (d) directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services, except to the extent (and only to the extent) expressly permitted by applicable law notwithstanding this limitation; and (e) attempt to gain unauthorized access to the Services or its related systems or networks.


ARTICLE 4 PROPRIETARY RIGHTS

4.1    Limited License to the Service. Subject to the terms and conditions of the Agreement, ZayZoon grants Client a non-exclusive, non-transferable, non-sublicensable (except as set forth herein), limited license during the Term (the “License”), to access and use the Service for the sole purpose of providing Client workers access to Earnings. Each worker of Client who elects to use the Service to access Earnings is a “User”. The Service includes (i) any APIs provided by ZayZoon for Client and / or Users to access the Service, if applicable, and (ii) any modifications, improvements, bug fixes, or other new versions of the Service made available to all licensees of the Service at no additional cost (each, an “Update”). Updates are applied to the Service automatically. The License includes the right to make, distribute and use a reasonable number of copies of the Documentation and Materials, in each case for Client’s internal business purposes, including promoting the Service to Users.

4.2    ZayZoon Ownership. Except for the limited rights granted in Section 4.1, ZayZoon retains all right, title and interest, including all intellectual property rights, in and to the Service and Materials. ZayZoon will own and retain all right, title and interest in and to (a) the Service and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Integrated Service or support, and all intellectual property rights related to any of the foregoing. Client acknowledges that the Service contains ZayZoon’s valuable trade secrets, the improper use or disclosure of which could cause ZayZoon irreparable harm. Accordingly, Client agrees to use the Service solely as authorized in this Agreement. Client acknowledges that the license and permissions granted pursuant to this Agreement are not a sale and do not transfer to Client title or ownership of the Service or a copy of the Service, but only a right of limited use. ZAYZOON RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER.

4.3    Client Data. Client shall provide, or authorize and direct Client’s payroll service to provide, ZayZoon with current, accurate information about Earnings at the times and in the manner agreed by the Parties. Earnings, time and attendance, information may be made available through an API connection with the Client System. Subject to the terms and conditions of this Agreement, Client grants to ZayZoon a limited, non-transferable (except pursuant to Section 11.2) license to use the information provided by Client and Client personnel or by any third parties acting on Client’s behalf (including any data retrieved by ZayZoon through the use of the Integrated Service) (such data collectively, “Data”) for the purpose of providing the Service. Client represents and warrants that: (i) it owns the Data posted by it on or through the Integrated Service or otherwise has the right to distribute the Data or grant the license set forth in this Section 4.3; (ii) the posting and use of Data on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (iii) the posting of Data on the Service does not result in a breach of contract between Client and any third party; and (iv) the Data and any other information reasonably requested by ZayZoon in order to provide the Service (i.e. information necessary to onboard Client, Employers or Users, including but not limited to financial information) is accurate. Client consents to the processing and storage of Data on hardware owned or controlled by third parties (i.e. AWS). Client will update the Data as necessary in order to maintain its accuracy. Notwithstanding anything to the contrary, ZayZoon will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning the Data and data derived therefrom), and ZayZoon will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other ZayZoon offerings, and (ii) disclose such data, provided such disclosure is only in aggregate or other de-identified form in connection with its business.

4.4    Performance Data. ZayZoon owns all data (i) regarding installation, registration, and use of the Service; and (ii) related to performance of the Service, including response times, load averages, usage statistics, activity logs, (collectively, “Performance Data”). Performance Data does not include any Personal Data or Client-specific output resulting from the use of the Service (“Client Output”) but may include aggregated or anonymized information derived from Client Output. Performance Data may be used to contribute to analytical models used by ZayZoon, to monitor and improve the Service, and to develop additional services and offerings.

4.5    Open-Source Software. Certain elements of the Service may be subject to “open source” or “free software licenses” (“OSS”) owned by third parties. OSS is not licensed under Section 4.1. Instead, each item of OSS is licensed under the terms of the end-user license that accompanies such OSS. Nothing in this Agreement limits Client’s right under, or grants Client rights that supersede, the terms and conditions of the applicable OSS end-user license.

4.6    Feedback. Client hereby grants ZayZoon a worldwide, perpetual, irrevocable, royalty-free right and license to use any ideas, suggestions, comments, recommendations, enhancement requests or other input provided by Client, its employees or agents, or Users about the Service to ZayZoon in any form in any way whatsoever.

ARTICLE 5 CONFIDENTIAL INFORMATION

5.1    Definition. “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, either before or during the Term and relating to this Agreement and the relationship between the Parties. Client’s Confidential Information includes Data; ZayZoon’s Confidential Information includes the Service; and Confidential Information of each Party includes business plans, technology and technical information, product designs, and business processes disclosed by such Party. However, Confidential Information (other than Data) does not include information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

5.2    Protection. The Receiving Party must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and the Receiving Party will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to the Disclosing Party’s Confidential Information to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party will disclose the terms of this Agreement to any third party except (A) to its Affiliates, legal, accounting, tax, and financial advisors, in each case on a need to know basis and subject to obligations of confidentiality no less restrictive than those set forth herein, (B) to actual or prospective investors, lenders, acquirers, or successors in connection with a financing, sale, merger, or similar transaction, subject to written confidentiality obligations, and (C) as required by applicable law, regulation, or order of a court or regulator of competent jurisdiction. The obligations in this Article 5 will continue for a period of three (3) years following the expiration or termination of this Agreement, except that with respect to Confidential Information that constitutes a trade secret under applicable law, the obligations will continue for so long as such information remains a trade secret. Notwithstanding anything to the contrary, pursuant to 18 U.S.C. § 1833(b), each Party acknowledges that an individual will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 

5.3    Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

ARTICLE 6 TERM AND TERMINATION

6.1    Term. This Agreement takes effect on the Effective Date and will remain in effect for a period of one (1) year (the “Initial Term”).  Upon the expiration of the Initial Term or any Renewal Term, this Agreement shall be automatically renewed for a one (1) year period (each, a “Renewal Term”) unless, at least thirty (30) days prior to the renewal date, either Party gives the other party written notice of its intent to terminate this Agreement. During any Renewal Term, the terms, conditions and provisions set forth in this Agreement shall remain in effect unless modified in writing and agreed by both Parties.

6.2    Termination. In the event of a material breach by a Party, the other Party may terminate the Agreement upon 30 days’ notice at any time unless such breach is cured within such 30-day period. Notwithstanding the foregoing, either Party may terminate this Agreement immediately upon written notice if the other Party (a) becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy or under any insolvency law, has a receiver, trustee, or similar officer appointed for any of its assets, or commences any proceeding for liquidation, dissolution, or winding up, and in the case of an involuntary proceeding such proceeding is not dismissed within sixty (60) days, or (b) commits a breach of Section 4 (License Restrictions) or Article 5 (Confidentiality).

6.3    Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Service granted to Client under this Agreement will immediately terminate.

6.4    Survival. Articles 5, 9, 10, and 11, Sections 4.2, 4.4, 4.5, and 4.6, and the last sentence of Section 4.3 will survive this Agreement’s termination, together with any other provision that by its nature is intended to survive.

ARTICLE 7 REPRESENTATIONS AND WARRANTIES

7.1    General Representations. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the right, power and authority to enter into this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate or organizational action; (iv) when executed and delivered 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; and (v) it will abide by all applicable federal, state and local laws and regulations with respect to online activities, use of User data and the products and services offered by each Party in connection with this Agreement.


ARTICLE 8 WARRANTY AND DISCLAIMER

ZayZoon will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Service and will perform the Services in a professional and workmanlike manner. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ZayZoon or by third- party providers, or because of other causes beyond ZayZoon’s reasonable control, but ZayZoon will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, ZAYZOON 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 AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND ZAYZOON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.


ARTICLE 9 INDEMNIFICATION

Each party (the “Indemnifying Party”) will defend the other party (the “Indemnified Party”) from any claim, action, suit or proceeding made or brought against Indemnified Party by a third party (including a User) arising out of or related to: (a) Indemnifying Party’s breach of any term in this Agreement, or (b) the  grossly negligent or willful acts or omissions of or by Indemnifying Party, its agents or subcontractors (the “Claims”), and will indemnify and hold harmless Indemnified Party for any damages, fines, penalties, or costs (including reasonable attorney fees) arising out of or related to such Claims except to the extent such claims are attributable to Indemnified Party’s negligence or willful misconduct, and provided Indemnified Party is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement.

In addition to the foregoing, ZayZoon will defend, indemnify, and hold harmless Client from any third-party claim alleging that Client’s use of the Service in accordance with this Agreement infringes or misappropriates such third party’s patent, copyright, trademark, or trade secret rights, and will pay any damages finally awarded against Client by a court of competent jurisdiction or agreed to in a settlement approved by ZayZoon. ZayZoon will have no obligation under this paragraph to the extent the alleged infringement arises from (a) Data or other materials provided by Client, (b) use of the Service in combination with products, services, or technology not provided by ZayZoon, (c) modifications to the Service not made by ZayZoon, or (d) use of the Service in breach of this Agreement. If the Service is, or in ZayZoon’s reasonable opinion is likely to be, the subject of an infringement claim, ZayZoon may at its option (i) procure for Client the right to continue using the Service, (ii) modify or replace the Service so that it is non-infringing while substantially preserving functionality, or (iii) if neither (i) nor (ii) is commercially reasonable, terminate this Agreement and refund any prepaid fees for the unused portion of the then-current Term.

The obligations in this Article 9 are contingent on the indemnified Party (i) promptly notifying the indemnifying Party of any indemnifiable claim (except that any failure to so notify the indemnifying party will not relieve indemnifying party of its obligations under this section unless such failure materially prejudices indemnifying party’s ability to defend the claim); (ii) granting the indemnifying Party sole control over the defense and/or settlement of the claim (provided that a settlement may not impose costs or liability on the indemnified Party without its consent); and (iii) providing reasonable assistance to the indemnifying Party at the indemnifying Party’s expense. Without limiting the foregoing, the Indemnifying Party will not, without the Indemnified Party’s prior written consent, enter into any settlement that (a) imposes any liability or obligation on the Indemnified Party, (b) includes any finding or admission of any violation of law or wrongdoing by the Indemnified Party, or (c) does not include a full release of the Indemnified Party. If a Claim is asserted as a class action, mass action, or consolidated proceeding, the Indemnifying Party will defend the entire proceeding, including with respect to unnamed putative class members to the extent attributable to the Claim.

ARTICLE 10 LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (A) THE AGGREGATE FEES RECEIVED BY ZAYZOON (NET OF REFUNDS AND CHARGEBACKS) UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY FEES PAID BY USERS IN CONNECTION WITH THEIR USE OF THE SERVICE, IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, AND (B) ONE HUNDRED THOUSAND U.S. DOLLARS (USD $100,000). NOTWITHSTANDING THE FOREGOING, THE LIABILITY CAP IN THIS SECTION WILL NOT APPLY TO: (I) A PARTY’S BREACH OF ARTICLE 5 (CONFIDENTIALITY) OR ITS OBLIGATIONS UNDER THE DPA; (II) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 9; (III) CLIENT’S BREACH OF SECTION 4 LICENSE RESTRICTIONS; OR (IV) EITHER PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT. EXCEPT FOR A BREACH OF THE LICENSE RESTRICTIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, LOSS OF GOODWILL, OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.


ARTICLE 11 MISCELLANEOUS

12.1    Publicity. ZayZoon will have the right, subject to Client’s prior approval, to indicate to the public that Client is an authorized user of the Service and to advertise such use of the Service using the trademarks, marks, and trade names that Client may adopt from time to time.

12.2    Assignment. Neither Party may assign or transfer its interest hereunder without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement (including by operation of law) without the written consent of the other Party: (a) to any of its Affiliates; or (b) or to any entity merging with, consolidating with or acquiring substantially all of the assets of such Party.  Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section will be null and void.

12.3    Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect.

12.4    Governing Law and Jurisdiction. This Agreement is governed by and construed under the laws of the State of Arizona without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Arizona and the Parties agree and submit to the exclusive jurisdiction and venue of these courts.

12.5    Modification and Waiver. A waiver or modification of this Agreement will only be valid if made in writing and signed by both Parties. The waiver of a breach of any term hereof will not be construed as a waiver of any other term or breach hereof.

12.6    Entire Agreement. This Agreement embodies the entire understanding of the Parties and supersedes any previous or contemporaneous communications, whether oral or written; and may be amended only by a writing signed by both Parties.

12.7    Independent Contractors. ZayZoon is a service provider to the Client. The Parties will at all times be independent contractors. Neither party will have any right, power or authority to enter into any agreement for or on behalf of, or to assume or incur any obligation or liabilities, express or implied, on behalf of or in the name of, the other party. This Agreement will not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party.

12.8    Notices. All notices required or permitted under this Agreement must be in writing and will be deemed given (i) when delivered personally, (ii) when sent by confirmed email transmission to the email address specified in the Order Form (or such other address as a Party may designate in writing), or (iii) three (3) business days after being sent by registered or certified mail or recognized overnight courier to the address set forth in the Order Form. Notices to ZayZoon must be copied to legal@zayzoon.com.

12.9    Order of Precedence. In the event of a conflict or inconsistency among the components of this Agreement, the following order of precedence will apply: (a) the Order Form, (b) these Terms, and (c) the DPA, except that (i) the DPA will prevail with respect to data protection obligations and (ii) an Order Form will prevail over these Terms only to the extent it expressly identifies the conflicting provision of these Terms and states that it is being superseded.

12.10    Fees and Taxes. Fees payable by Client to ZayZoon, if any, are as set forth in the Order Form. All fees are exclusive of, and Client is responsible for, all applicable sales, use, and similar taxes, other than taxes based on ZayZoon’s net income. Unless otherwise specified in the Order Form, all amounts are stated in U.S. dollars and are payable within thirty (30) days of invoice. Amounts not paid when due will bear interest at the lesser of 1.5% per month and the maximum rate permitted by applicable law.

12.11    Force Majeure. Neither Party will be liable for any failure or delay in performance (other than payment obligations) caused by a Force Majeure Event, provided the affected Party (a) promptly notifies the other Party of the Force Majeure Event, (b) uses commercially reasonable efforts to mitigate the impact, and (c) resumes performance as soon as reasonably practicable. If a Force Majeure Event continues for more than sixty (60) consecutive days, either Party may terminate this Agreement upon written notice without liability.

12.12    Insurance. ZayZoon will maintain, at its own expense, insurance coverage appropriate to its obligations under this Agreement, including (a) commercial general liability insurance with limits of not less than USD $2,000,000 per occurrence and USD $5,000,000 in the aggregate, and (b) technology errors and omissions / cyber liability insurance with limits of not less than USD $5,000,000 per claim. 

12.13    No Third-Party Beneficiaries. This Agreement is for the benefit of the Parties and their permitted successors and assigns, and is not intended to confer any rights or benefits on any third party, including any User.

12.14    State Variation; Regulatory Change. The Service is not available in all states. If applicable law (including any regulatory guidance, order, or interpretation) materially affects the lawful operation of the Service in any state or other jurisdiction, ZayZoon may, upon reasonable prior notice to Client and acting in good faith, modify, suspend, or discontinue the Service in such jurisdiction without such modification, suspension, or discontinuation constituting a breach of this Agreement.

12.15    No Custody; Wage Compliance. ZayZoon does not take custody of Client funds in connection with the Service. Client is responsible for compliance with applicable wage payment and deduction laws in respect of its workers.

12.16    Sanctions. Each Party represents and warrants that it is not (i) identified on the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) Specially Designated Nationals and Blocked Persons List or any analogous sanctions list maintained by any U.S. governmental authority (a “Sanctioned Person”), (ii) organized, located, or resident in a country or territory that is the subject of comprehensive U.S. sanctions, or (iii) owned or controlled by any Sanctioned Person. Each Party will comply with all applicable U.S. sanctions and export control laws and regulations in connection with this Agreement.

12.17    User Communications. Client acknowledges that, in connection with the provision of the Service, ZayZoon may send communications to Users by email, SMS, push notification, automated telephone dialing systems, voice, or other means. ZayZoon will rely on the consents, authorizations, and preferences obtained directly from Users in connection with their registration for and use of the Service, as set forth in ZayZoon’s User-facing terms and the Privacy Policy. Client will not direct or instruct ZayZoon to send User communications in any manner that would violate applicable law, including the Telephone Consumer Protection Act (47 U.S.C. § 227), the CAN-SPAM Act, and the implementing regulations of each. Client is solely responsible for any communications sent by Client (or directed by Client to be sent outside of the Service) to Users or any other person and for compliance with applicable law in connection therewith. Additional terms relating to data processing and electronic communications are set forth in the DPA.

12.18    Dispute Resolution; Arbitration. (a) Mutual Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement, including the formation, interpretation, breach, or termination thereof, and whether the claims are in contract, tort, statute, or otherwise (each, a “Dispute”), will be resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules then in effect, except as modified herein. The arbitration will be conducted by a single arbitrator. The seat of arbitration will be Phoenix, Arizona, and the arbitration will be conducted in English. The arbitrator’s award will be final and binding and may be entered as a judgment in any court of competent jurisdiction. (b) Class Action Waiver. EACH PARTY AGREES THAT ANY DISPUTE WILL BE BROUGHT IN ITS INDIVIDUAL CAPACITY ONLY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION. THE ARBITRATOR HAS NO AUTHORITY TO CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES OR TO PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING. (c) Jury Trial Waiver. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. (d) Carve-outs. Notwithstanding the foregoing, either Party may (i) bring an individual action in small claims court, (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to protect its intellectual property rights, Confidential Information, or to enforce the license restrictions in Section 4, in each case without first complying with the arbitration procedure, and (iii) bring an action to confirm, vacate, or enforce an arbitration award. (e) Governing Procedure. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., governs the interpretation and enforcement of this Section.

12.19    Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (including by facsimile or electronic transmission), each of which when so executed and delivered will be deemed an original, and all of which together will constitute one instrument. The Parties consent to be bound by electronic signatures and acknowledge that this Agreement may be executed and delivered electronically in accordance with the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.), the Uniform Electronic Transactions Act, and any state equivalents.