Terms and Conditions of Use, Technology, and Intellectual Property

Thanks for visiting our Terms of Use for our Technology Services and Products.

1. Intellectual Property Rights.

(i) Zenplace owns all right, title and interest in and to the Zenplace programs, software, services and devices (which include, for purposes of clarity, all software and/or mobile applications related thereto) including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the Zenplace programs and services and services, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property. 

(ii) Zenplace hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use Zenplace’s programs and services and services and services for internal business purposes so long as your account with Zenplace remains current and active. If Zenplace provides you with a password, you are solely responsible for protecting the password and for any authorized or unauthorized use made of the password. All products and services, and all source code, data, object code, software, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of Zenplace. You shall refrain from permitting any third party to use your password or otherwise access Zenplace. Zenplace shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in the Agreement or your Zenplace account is otherwise terminated for any reason. 

(iii) Zenplace is the sole and exclusive owner of all right, title and interest in and to any data provided to Zenplace by your customers or any end user to Zenplace in connection with the Zenplace programs and services and services, including without limitation all e-mail and/or other contact information (“Customer Data”). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt in to provide contact information to you, be provided with or otherwise have access to the Customer Data. 

(iv) Without limiting any of Zenplace’s rights set forth in the Agreement, Zenplace reserves the right, in its sole discretion but without any obligation on its part, to reject, remove, delete and/or cancel any information or content displayed or posted on any device, the Zenplace website, any portion of the Zenplace programs and services and services and serices, and/or within any print materials, including without limitation any information and/or content that, in Zenplace’s view, contains content or links which do not meet Zenplace’s specifications or requirements. In addition, Zenplace shall be entitled, in its sole discretion and without notice to any party, to redesign and/or modify all or any portion of the Zenplace Program (including without limitation any mobile or internet application and/or software) at any time.

2. Restrictions.

You: (i) will use the Zenplace programs and services and services and services solely for your internal business purposes; and (ii) will not, for yourself, any of your affiliates or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the Zenplace programs and services and services, (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the Zenplace programs and services and services, (c) copy any tangible versions of the Zenplace programs and services and services, or (d) remove from any of the Zenplace programs and services and services any language or designation indicating the confidential nature thereof or the proprietary rights of Zenplace. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the Zenplace programs and services and services where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. Zenplace retains the right, in its sole discretion but without any obligation on the part of Zenplace to monitor or evaluate any communications, to approve, modify or refuse any Zenplace-related communications or proposed communications or messages to your customers or any Zenplace end users.\

3. Fees; Pricing and Payment Terms; Taxes.

(i) Zenplace’s current fees for the Zenplace programs and services and services and its services can be obtained by emailing us. Zenplace reserves the right to amend the fees payable for the Zenplace programs and services and services at any time upon thirty (30) days’ prior notice to you, or with notice as applicable per your agreement with Zenplace. 
(ii) When you provide your payment information to Zenplace, you are providing Zenplace with an authorization to process any and all payments as outlined in this Agreement. In certain instances, the payment processing may not occur immediately, and your payment may show as “pending” during this time period. In addition, Zenplace may request an authorization for the amount of your anticipated transaction in advance and may estimate the final value of the transaction, which may be more than the amount of the actual transaction. Zenplace will release any funds authorized in excess of the amount of the actual transaction at the time the transaction settles. 
(iii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the Zenplace programs and services and services. 
(iv) Notwithstanding anything herein to the contrary, Zenplace, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the Zenplace programs and services and services, at any time, upon electronic or other notice to you, if you have not paid all amounts due on or before the payment due date, or for any other breaches of the Merchant Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by Zenplace to collect any unpaid amounts owed by you.

4. Term; Termination; Survival.

The Zenplace term, as further described below, is effective upon when the product or service is made available to your business. You may amend your contract to include additional Zenplace features through an online or mobile system. When you make changes through your online or mobile system, you are providing explicit authorization for Zenplace to process payment on your existing Zenplace account and method of payment without any further authorization necessary from you. 
 At the end of any billing period, you will automatically renewed on a month–to–month basis at the then-current rates until such time as either party provides written notice of termination to the other party, in accordance with terms below. Current fees will be charged to the payment method on file unless Zenplace is otherwise notified of a cancellation in writing. Although Zenplace may choose to send a reminder email prior to charging a customer for a renewal fee, Zenplace is not responsible for notifying a customer of this automated renewal. 
 Current fees will be charged to billing information on file unless Zenplace is otherwise notified of a cancellation in writing. customers renewed on a monthly basis must provide written cancellation notice at least thirty (30) days prior to the beginning of the next monthly or annual term (as applicable).

Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, Zenplace may terminate the Agreement and/or your access to one or all Zenplace programs and services and services in the event you fail to remain current in all fees due and owing to Zenplace or in the event you breach any of your obligations under the Agreement.

In the event of any termination of the Agreement or any Zenplace Program, Zenplace shall be entitled to send e-mail and/or other communications to some or all of your program members and customers, including notifying each such member of your termination of the Zenplace Program. In addition to the foregoing permissible e-mail, Zenplace shall be entitled to take other actions, at its discretion, to communicate with your members and customers. 

In addition, any and all items provided by Zenplace must be returned by you to us. If any item is not returned, Zenplace may charge you for the cost of the item not returned.

5. Representations and Warranties; Disclaimer.

(i) Zenplace warrants that Zenplace has the authority to enter into this Agreement. 
 (ii) You represent, warrant and covenant to Zenplace that: (a) you have the authority to enter into this Agreement; (b) you will use Zenplace programs and services only as this agreement intends; (c) you will only use the Zenplace programs and services and services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (d) you will not use any Zenplace Program to send any e-mail or other communications which violate any applicable regulation, rule, industry protocol or law (including, without limitation, the CAN-SPAM Act).


(iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, ZENPLACE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, ZENPLACE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MINIMUM LEVEL OF UPTIME OR SERVICE LEVELS FOR THE ZENPLACE PROGRAM OR THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY ZENPLACE PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF ZENPLACE PROGRAMS AND SERVICES OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. ZENPLACE PROGRAMS AND SERVICES AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND UNDER NO CIRCUMSTANCES SHALL ZENPLACE BE LIABLE TO YOU OR ANY OTHER PARTY ON ACCOUNT OF ANY DOWNTIME OR ANY OTHER ISSUES WITHIN OR RELATED TO ANY ZENPLACE PLATFORM OR APPLICATION. YOU HEREBY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND/OR PROVIDING CUSTOMER SERVICE TO ALL LOCATIONS IN WHICH THE ZENPLACE PROGRAMS AND SERVICES ARE TO OPERATE.

6. Confidential Information.

Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of Zenplace. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.

7. Dispute Resolution; Governing Law.

In the event of a reward dispute or mistake between you and the User, Zenplace may in its sole discretion and without liability of any kind unilaterally make adjustments to the User rewards , referrals or account (it being understood that Zenplace shall not be (i) obligated to make any such adjustment or otherwise get involved with or provide any assistance towards resolving any such dispute, or (ii) be liable to any party for any damages, expenses or liabilities arising out of any such dispute). To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of California and you expressly agree to the exclusive jurisdiction for any claim or dispute with Zenplace in the federal and state courts within the jurisdiction of Santa Clara County in California. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.

8. Indemnification.

You will defend, indemnify, and hold Zenplace and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your negligence or misconduct, any dispute you may have with any other party in connection with any Zenplace Program or otherwise related in any way to any Zenplace Program, your unauthorized use or misuse of the Zenplace programs and services and services or any unauthorized combination of any Zenplace Program with any software, hardware, products, data or other materials not specified or provided by Zenplace.

9. Limitation of Liability.

You will defend, indemnify, and hold Zenplace and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your negligence or misconduct, any dispute you may have with any other party in connection with any Zenplace Program or otherwise related in any way to any Zenplace Program, your unauthorized use or misuse of the Zenplace programs and services and services or any unauthorized combination of any Zenplace Program with any software, hardware, products, data or other materials not specified or provided by Zenplace.

10. Indemnification.

Zenplace’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to Zenplace under the Agreement during the twelve (12) months preceding the date on which the applicable claim occurred. To the maximum extent permitted by applicable law, in no event will Zenplace be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services or any Zenplace Program, however caused and regardless of theory of liability. In addition, Zenplace will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any Zenplace product, service or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.

11. Notice.

Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the business/billing contact person listed either by (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery.

12. Assignment.

You may not, without the prior written consent of Zenplace, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void; provided, however, that in the event of a sale of substantially all of your assets or equity to a third party or any merger of your entity with an into a third party, this Agreement shall be deemed, without any further action on the part of any party, to automatically be assigned to and assumed by the acquirer in such transaction and as such, shall be binding on such acquirer. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.

12. No Third Party Beneficiaries.

The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.

12. Amendment; Waiver.

This Agreement may be changed by Zenplace upon posting an updated version of the Agreement at Zenplace’s website and/or within the applicable Zenplace program or service, any such change to become effective 10 business days after posting such updated version of the Agreement as described above. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.

13. Severability.

If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.

14. Independent Contractor.

The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

15. Force Majeure.

Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to Zenplace provided prior to the force majeure event.

15. Compliance with Laws.

Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.

16. Entire Agreement.

The Agreement constitutes the entire agreement between Zenplace and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.

17. Customer Communication Terms of Use.

The following terms shall, in addition to all of the other terms set forth in this Agreement, govern your use of Zenplace’s products and services. 
General Rules 
 1. You won’t violate any applicable laws or Zenplace’s Acceptable Use guidelines, established below, as they may be in effect from time to time, which is part of this Agreement. If you violate any of these rules, Zenplace, in addition to any other rights or remedies that Zenplace may have hereunder or otherwise, may suspend or terminate your account. 
2. If Zenplace, in its sole discretion, determines that you are abusing the product or services, violating any law or regulation, or otherwise abusing or misusing the platform in any way, Zenplace shall, in addition to any other remedies available to Zenplace in this Agreement and/or at law, be entitled to unilaterally adjust your allowed use of the product. 

3. Compliance with Laws 
 You represent and warrant that your use of Zenplace’s products and services will comply with all applicable laws and regulations. You are responsible for determining whether Zenplace’s services are suitable for you to use in light of any regulations such HIPAA, GLB, EU Data Privacy Laws and/or other laws. If you are subject to regulations (such as HIPAA) and you use Zenplace products or service, then Zenplace will not be liable if any such service does not meet those requirements. Thank you!

Policy Changes and Contact Information

We may modify and revise our terms and policy from time to time. If we make any material changes to this policy, we will notify you of such changes by posting them on this page or in some cases, by sending you an email or other notification, and we will indicate when such changes will become effective. By continuing to access or use our Services after those changes become effective, you are agreeing to be bound by the revised policy.

Please contact us at support@zenplace.com if you have any questions about our Terms of Use.

Last Date of Revision: March 21, 2017