Zavy agrees to provide, and the Client agrees to purchase, the Services, on the terms and conditions set out in the Agreement.
Except when expressly provided otherwise, the definitions in this clause apply in the Agreement.
Agreement means the Saas Terms and the Subscription
Agreement and any Schedules and any amendments to those documents from time to time.
AUP means the Acceptable Use Policy currently posted at www.zavy.co, if any.
Client means the Client defined in the Agreement.
Confidential Information means the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement and the provision and use of the Services.
Effective Date means the Start Date defined in the Agreement.
Fee(s) means the Services Fee as described in the Agreement and any other fees agreed between the parties. All Fee amounts are exclusive of any relevant tax, which the Client must pay on any taxable supplies under the Agreement.
Intellectual Property means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer Software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights (whether registrable or unregistrable), including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Payment Cadence means the Payment Cadence defined in the Agreement.
Proprietary Information means business, technical or financial information relating to the relevant party’s business. Proprietary Information of Zavy includes non-public information regarding features, functionality and performance of the Services and Software.
Saas Terms means these Saas Terms, as amended from time to time.
Services Fee means the services fee set out in the Agreement.
Services means the Services set out in the Agreement.
Software means the Zavy Social Media Analytics Platform and any software, documentation or data related to the Services and includes any maintenance releases or updates to that software from time to time.
Support Level means the support level set out in the Agreement.
Term means the service term provided
a) The Services Subject to the Agreement, Zavy will provide the Services, on the terms and conditions set out in the Agreement and in accordance with the service level terms set out below.
b) Service level terms Zavy shall use commercially reasonable efforts at prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Zavy or by third-party providers, or because of other causes beyond Zavy’s reasonable control, but Zavy shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
c) Services are non-exclusive Zavy’s provision of the Services is non-exclusive. Nothing in the Agreement prevents Zavy from licensing, selling or otherwise providing the Services to any other person.
d) Changes to the Services Any change to the Services will be agreed in writing by the parties. If there are additional costs for the change, the Client will be notified by Zavy before agreement.
a) Client to pay Fees The Client will pay Zavy the Fees in consideration for the Services, at the Payment Cadence defined in the Agreement.
b) Alteration of Fees Zavy reserves the right to change the Fees or applicable charges and to institute new charges and fees at the end of the Term, upon 30 days prior notice to the Client.
c) Fee dispute If the Client believes that Zavy has invoiced the Client incorrectly, the Client must contact Zavy no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Zavy’s client support department.
d) Invoicing and taxes Zavy will bill the Client through an invoice issued quarterly in advance. Full payment for invoices issued in any given month must be received by Zavy by the 20th day of the month following receipt of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Fee amounts are exclusive of any relevant tax, which the Client must pay on any taxable supplies under the Agreement.
a) General restrictions The Client represents, covenants, and warrants that it will comply with the AUP and all applicable laws and regulations. The Client will not, directly or indirectly:
i) 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 Software; or
ii) modify, translate, or create derivative works based on the Services or Software (except to the extent expressly permitted by Zavy or authorised within the Services); or
iii) use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels; or
iv) provide Services or Software passwords or other log-in information to any third party.
b) Unauthorised access The Client will take reasonable steps to prevent unauthorised access to the Service, including without limitation by protecting its passwords and other log-in information. The Client shall notify Zavy immediately of any known or suspected unauthorised use of the Services or breach of its security and shall use best efforts to stop any such breach.
c) Users and access to Services The Client is responsible and liable for any use of the Services through the Client’s account, whether authorised or unauthorised.
d) Zavy may monitor use of Services Although Zavy has no obligation to monitor the Client’s use of the Services, Zavy may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this clause 5.
e) The Client is responsible for Equipment The Client is 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 (Equipment). The Client shall also be responsible for maintaining the security of the Equipment, the Client account, passwords (including administrative and user passwords) and files, and for all uses of the Client account or the Equipment with or without the Client’s knowledge or consent.
a) Confidential Information and Proprietary Information Each party (the Receiving Party) understands that the other party (the Disclosing Party) has disclosed or may disclose Confidential Information and/or Proprietary Information.
b) The Receiving Party The Receiving Party agrees:
i) to take reasonable precautions to protect Confidential Information and/or Proprietary Information; and
ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any Confidential Information and/or Proprietary Information (without the Disclosing Party’s consent).
c) The Disclosing Party The Disclosing Party agrees that clause 6(b) shall not apply in relation to any information that:
i) is or becomes generally available to the public; or
ii) was in the possession of the Receiving Party or known by the Receiving Party prior to receipt from the Disclosing Party; or
iii) was rightfully disclosed to the Receiving Party without restriction by a third party; or
iv) was independently developed without use of any Confidential Information and/or Proprietary Information of the Disclosing Party; or
v) is required to be disclosed by law; or
vi) is disclosed by Zavy if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Zavy enters into a confidentiality agreement with the third party on terms no less restrictive than this clause.
d) Injunction The Client agrees that breach of this clause 6 would cause Zavy irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Zavy will be entitled to injunctive relief against any breach or threatened breach, without proving actual damage or posting a bond or other security.
e) Retention of Rights The Agreement does not transfer ownership of Confidential Information and/or Proprietary Information or grant a license thereto. The Disclosing Party retains all right, title, and interest in and to all relevant Confidential Information and/or Proprietary Information.
a) Zavy owns the Services and Software, and all data associated with the Services and Software.
Zavy owns and retains all rights, title and interest in and to:
i) the Services and Software, and all improvements, enhancements or modifications thereto, including, without limitation, all graphics, user interfaces, logos, data, and trademarks reproduced through the Services or Software;
ii) any software, applications, inventions or other technology developed in connection with the Services;
iii) any and all data created and used in the provision of the services; and
iv) all Intellectual Property related to any of the foregoing.
b) No rights or licenses grantedThis Agreement does not grant the Client any rights or licence to the Intellectual Property in or to the Services or Software or any of its components except as expressly set out in this Agreement. The Client recognises that the Services and Software and its components are protected by copyright and other laws.
a) Zavy’s use of Client feedback If the Client chooses to submit comments, ideas or feedback about the Services, it is agreed that Zavy is free to use them without any restriction or compensation to the Client. By accepting any such submission, Zavy does not waive any rights to use similar or related feedback previously known to Zavy, or developed by its employees, or obtained from other sources.
the Agreement applies for the Term, and shall be automatically renewed for additional periods of the same duration as the Term, unless either party requests termination at least 60 days prior to the end of the then-current Term.
b) Early termination In addition to any other remedies it may have, either party may terminate the Agreement upon 30 days’ notice (or without notice in the case of clause 9(c)), if the other party materially breaches any of the terms or conditions of the Agreement. The Client will pay in full for the Services up to and including the last day on which the Services are provided and be refunded for any overpayment. For the avoidance of doubt, a material breach on behalf of Zavy includes an event where Zavy is unable to provide the Services for a period of 14 days or more.
c) Early termination in the case of nonpayment Zavy may terminate the Agreement without notice in the event that the Client fails to comply with clause 4.
d) Effects of termination Upon termination of the Agreement, the Client shall cease all use of the Services and delete, destroy, or return all Proprietary Information and Confidential Information in its possession or control to Zavy.
e) Survival of certain clauses All clauses and sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
a) Disclaimers Zavy disclaims all responsibility and assumes no liability for the Client’s use of the Services. Zavy disclaims all warranties, express or implied, including, but not limited to:
i) the Services being uninterrupted or error free;
ii) results that may be obtained from the use of the Services;
iii) merchantability and fitness for a particular purpose;
iv) non-infringement; and
v) security of the Services and Software from hacking or other unauthorised intrusion.
b) The Client Except as expressly set out in this clause, the Client accepts that the Services are provided ‘as is’. The Client represents and warrants that:
i) it has the full right and authority to enter into, execute, and perform its obligations under the Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by the Agreement;
ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Services; and
iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorised to do business pursuant to applicable law and is acquiring the Services for the purpose of a business and the Consumer Guarantees Act 1993 (NZ) does not apply to the Services or the Agreement.
a) Limitations Notwithstanding anything to the contrary, but taking into account the exceptions stated below in clause 12(b), Zavy and its suppliers (including all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of the Agreement under any contract, negligence, strict liability or other theory:
i) 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; or
ii) for any indirect, exemplary, incidental, special or consequential damages; or
iii) for any matter beyond Zavy’s reasonable control (for example, unauthorised access or use of User Content or any illegal or offensive conduct or User Content from third parties); oriv) for any amounts that, together with amounts associated with all other claims, exceed $100, whether or not Zavy has been advised of the possibility of such damages.
b) Exceptions Zavy does not exclude liability for:
i) death or personal injury caused by the negligence of Zavy, its officers, employees, contractors or agents; or
ii) fraud or fraudulent misrepresentation; or
iii) loss or damage arising as as result of Zavy’s gross negligence; or
iv) breach of the confidentiality obligation in the Agreement; or
v)any other liability which may not be excluded by law.
For any dispute between the Client and Zavy, both parties agree to first contact the other party and attempt to resolve the dispute informally and in good faith. If the issue cannot be resolved informally, the parties agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to the Agreement by final and binding mediation in accordance with the laws of the country in which the non-disputing party is based at that time. Nothing in this clause 13 prevents either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorised access to the Services. All claims must be brought in the relevant party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. By entering into the Agreement, both the Client and Zavy waive the right to trial by jury or to class action.
a) Severability If any provision of any term under this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.
b) Force Majeure No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
c) Assignment This Agreement is not assignable, transferable or sublicensable by the Client except with Zavy’s prior written consent. Zavy may transfer and assign any of its rights and obligations under the Agreement without consent.
d) Entire Agreement The 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 the Agreement. All waivers and modifications of the Agreement must be in writing and signed by both parties, except as otherwise provided herein.
e) No agency No agency, partnership, joint venture, or employment is created as a result of the Agreement and the Client does not have any authority of any kind to bind Zavy in any respect whatsoever.
f) Construction The parties agree that the Agreement is the result of negotiations between them. The Agreement will not be construed in favor of or against either party by reason of authorship.
g) Costs In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and legal fees.
h) Notices All notices under the 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 e-mail; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
i) No waiver Neither party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorised representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
j) Jurisdiction This Agreement is governed by, and interpreted in accordance with, New Zealand law. The New Zealand courts have exclusive jurisdiction to hear any disputes concerning matters involving the Agreement.
l) Counterparts The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.
m) Case studies Zavy may create a case study about the Client and the Client’s experience as a user of the Service. Case studies may be published publicly, but will be sent to the Client for approval before doing so. The Client agrees to cooperate with Zavy to serve as a reference account upon request.