THIS AGREEMENT GOVERNS YOUR USE OF THE [ZECK, INC.] (“ZECK”) SERVICES. YOU MAY ONLY USE THE SERVICES IF YOUR EMPLOYER HAS ENTERED INTO A SEPARATE AGREEMENT WITH ZECK. IF YOU ARE A PAYING CUSTOMER OF OUR SERVICES, YOU ARE ALSO SUBJECT TO THE TERMS OF THE MASTER SUBSCRIPTION AGREEMENT LOCATE HERE. BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” IN THIS AGREEMENT.
This Agreement was last updated on November 30, 2021 (the “Agreement”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow you or any authorized users to access the Zeck Solution.
1.2 “Zeck Solution” means the Zeck communication and management platform that allows you to access certain features and functions through a web interface, as ordered by your employer.
1.3 “your Content” or “Content” means any content and information you provide or submit for use with the Services.
1.4 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.5 “Services” means provision of access to the Zeck Solution.
2. PROVISION OF SERVICES
2.1 Access. Subject to your employer’s payment of the applicable fees (“Fees”) and compliance with the terms of this Agreement, Zeck will provide you with access to the Zeck Solution. On or as soon as reasonably practicable after the Effective Date Zeck will provide to you the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow you to access the Zeck Solution in accordance with the Access Protocols.
2.2 Use Guidelines and Restrictions. You shall use the Service solely for the business purposes of your employer as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, except as contemplated by this Agreement; (b) send via, or store within, the Service any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via, upload to, or store within the Service any malicious code; (d) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (e) attempt to gain unauthorized access to the Zeck Solution or its related systems or networks; (f) interfere in any manner with the operation of the Zeck Solution or the hardware and network used to operate the Zeck Solution; or (g) access or use the Zeck Solution to build a similar or competitive product or service; (h) attempt to access the Zeck Solution through any unapproved interface. In no event shall you decompile, disassemble, decode, reproduce, redesign, or reverse engineer the Zeck Solution or its component parts or otherwise decrypt encrypted information provided pursuant to the provision of Services. You will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Zeck or its licensors on the documentation or any copies thereof.
2.3 Requirements. Accessing the Zeck Solution requires you to use certain hardware and software satisfying the requirements set forth in the documentation (e.g., type of browser and version). You are solely responsible for ensuring that all of its devices and software meet these requirements. Zeck may update the documentation and these requirements from time to time in its sole discretion to account for new technologies, new features of the Services, or for any other reason related to the proper functioning of the Services, and Zeck will use commercially reasonable efforts to notify you of material updates to these requirements.
2.4 Sale of Services. We may offer for sale or download licenses to certain Zeck products or services (“Services”). Your use of such Services will be subject to licensing terms applicable to such Services, or a separate written agreement between you and Zeck. If you have previously purchased Services, those Services are subject to the terms and conditions of the Master Subscription Agreement located at https://support.zeck.app/article/18-master-subscription-agreement
3.1 Your Content. As between Zeck and you, you exclusively own all rights, title and interest in and to all your Content. You grant Zeck a worldwide, limited-term license to host, copy, transmit and display your Content for use by You with the Services, as reasonably necessary for Zeck to provide the Services in accordance with this Agreement. This license ends one year after you delete your Content or this Agreement expires or is terminated, except to the extent that your Content has been shared with others and they have not deleted it.
3.2 Co-Authoring. One feature of the Zeck Solution is the ability to share a presentation, board materials or other of your Content with another authorized user in a manner that allows the authorized user to edit your Content, or portions thereof, as permitted by the Zeck Solution. Once shared, that authorized user has access to your Content until you (or the authorized user who granted such access) removes such access. Zeck is not responsible for the actions of the authorized users.
3.3 Sharing. You control the access to your Content. Presentations, board decks and other Content will only be available to the authorized users that you authorize to have access to your Content. You may invite one or more people (a “Viewer”) to view the designated your Content by sending them a “share” or “invite” link. You authorize Zeck to share the designated your Content with such Viewers. Zeck is not responsible for the what a Viewer may do with your Content.
3.4 Responsibility for your Content. You are solely responsible for any and all obligations with respect to the accuracy, quality and legality of your Content. You will obtain all third party licenses, consents and permissions needed for Zeck to use your Content to provide the Services. Without limiting the foregoing, you will be solely responsible for obtaining from third parties all necessary rights for Zeck to use your Content submitted by or on behalf of you for the purposes set forth in this Agreement.
3.5 Your Warranty. You represent and warrant that your Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Zeck’s system or data; and (e) otherwise violate the rights of a third party. Zeck is not obligated to back up any of your Content; you are solely responsible for creating backup copies of any of your Content at your sole cost and expense. You agree that any use of the Zeck Solution contrary to or in violation of the representations and warranties of you in this Section 3.5 constitutes unauthorized and improper use of the Zeck Solution.
3.6 Your Responsibility for Data and Security. You will have access to your Content and will be responsible for all changes to and/or deletions of your Content and the security of all passwords and other Access Protocols required in order the access the Zeck Solution. You will have the ability to export your Content out of the Zeck Solution and are encouraged to make your own back-ups of your Content. You will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all your Content.
3.7 Third Party Content. Zeck may enable you to insert third-party content into your Content. Such third-party content is subject to the license terms and contractual provisions that accompany it, and you are solely responsible for compliance with all such terms and provisions. For example, if you use an image that is licensed pursuant to a Creative Commons license that prohibits commercial use, you may not use the image for commercial purposes.
3.8 Privacy of your Content. Zeck will not view or access any your Content, except: (a) as required to provide the Services or as otherwise necessary for purposes of evaluating and responding to security incidents and legal requests, (b) as authorized or instructed by you or an authorized user (e.g. for support), (c) as required to comply with applicable law or governmental request, or (d) as necessary to conduct research and development for the further development of our Services in order to provide the Services to you and others (including account, service usage, and survey information). Notwithstanding anything to the contrary, Zeck shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Zeck Solution and related systems and technologies (including, without limitation, information concerning your Content and data derived therefrom), and Zeck will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Zeck Solution and Services and for other development, diagnostic and corrective purposes in connection with the Services and other Zeck offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Zeck will not disclose any your Content to a third party (other than Viewers authorized by you) without your consent, which may be withheld in your sole discretion.
4. ZECK SOLUTION
4.1 Ownership. The Zeck Solution and documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Zeck and its suppliers. All rights in and to the Zeck Solution and documentation not expressly granted to you in this Agreement are reserved by Zeck and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Zeck Solution, documentation, or any part thereof.
4.2 Open Source Software. Certain items of software may be provided to you with the Zeck Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 4.1. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Zeck makes such Open Source Software, and Zeck’s modifications to that Open Source Software, available by written request at the notice address specified below.
4.3 Feedback. You hereby grant to Zeck a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including authorized users, relating to the Services. Zeck will not identify you as the source of any such feedback.
5. YOUR RESPONSIBILITIES. You are responsible for all activities that occur in your account. You shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Content; (b) prevent unauthorized access to, or use of, the Service, and notify Zeck promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Service.
6. WARRANTY DISCLAIMER
6.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” AND ZECK MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. ZECK DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE ZECK SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY
7.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2 Amount of Damages. ZECK WILL HAVE NO DIRECT LIABILITY TO YOU UNDER THIS AGREEMENT. ZECK’S LIABILITY TO YOUR EMPLOYER IS AS SET FORTH IN A SEPARATE AGREEMENT BETWEEN ZECK AND YOUR EMPLOYER. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
7.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, documentation, and all enhancements and improvements thereto will be considered Confidential Information of Zeck.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to authorized users (with respect to you) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Zeck). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
8.3 Exceptions. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
You will defend at its expense any third party suit brought against Zeck, and will pay any settlement you makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to your breach or alleged breach of Sections 3.5. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. TERM AND TERMINATION
10.1 Term. This Agreement will begin on the when you create your account or first start using the Services and continue until the Agreement with your employer ends (the “Term”).
10.2 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; and (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 8. Sections 1, 3.2, 3.3, 3.5, 4, 8, 9, 10, and 11 will survive expiration or termination of this Agreement for any reason.
10.3 Right to Suspend. Zeck will have the right to suspend your access too the Zeck Solution (or a Viewers right to view your Content), in the event that: (a) Zeck receives a complaint that your Content infringes a third party’s rights or is otherwise unlawful; (b) Zeck has a reason to believe that you or an authorized user is in violation of Sections 2.2, 3.5 or 8. Zeck will promptly notify you of the suspension and work with you to resolve the issue to reinstate the Service as soon as possible.
11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. you hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware for any lawsuit filed there against you by Zeck arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.2 Export. you agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Zeck, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Zeck may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without your consent. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.6 Compliance with Law. you will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and documentation.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Zeck, by emailing email@example.com and if to you by emailing you point of contact email address provided to Zeck, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
11.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
11.10 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. This Agreement also supersedes any previously executed NDAs between the Parties. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of you and the Zeck.