These Terms and Conditions ("Agreement") constitute a legally binding agreement between the entity or individual ("Merchant," "you," or "your") accessing or using the Zettlor platform and Zettlor, Inc., a Delaware corporation ("Zettlor," "we," "us," or "our"). By accessing, registering for, or using the Platform, you acknowledge that you have read, understood, and agree to be bound by this Agreement.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. If you do not have such authority, or if you do not agree with these terms, you must not accept this Agreement and may not use the Platform.
If you signed a separate agreement to access the Platform with the same account, and that agreement has not ended, these terms do not apply to you. Instead, your separate agreement applies to your use of the Platform.
"Aggregated Data" means data derived from Merchant Data or Platform usage that has been de-identified, anonymized, and aggregated such that it does not identify Merchant or any End User.
"Beta Products" means any early or prerelease feature or version of the Platform that is identified as beta, preview, experimental, early access, or similar designation.
"Documentation" means the usage manuals, instructional materials, and help documentation for the Platform made available by Zettlor.
"End Users" means individuals who book, purchase, or otherwise engage with Merchant's services through the Platform.
"Feedback" means suggestions, enhancement requests, recommendations, or other feedback regarding the Platform.
"Merchant Data" means all data, content, and information that Merchant uploads, submits, or inputs into the Platform, including but not limited to business information, pricing data, booking records, and End User information, but excluding Feedback.
"Order Form" means any order form, statement of work, pricing schedule, signup page, or similar document that references this Agreement and specifies the services, fees, and other terms applicable to Merchant's subscription.
"Platform" means Zettlor's autonomous business management software, including all related applications, APIs, integrations, Documentation, and services.
"Pricing Technology" means Zettlor's automated algorithms, machine learning systems, artificial intelligence, and related technologies used to generate dynamic pricing recommendations, demand forecasting, and revenue optimization insights.
"Processing Fee" means the fee charged for payment processing services as specified in the Order Form or during signup.
"Prohibited Data" means: (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (HIPAA); (b) credit card, debit card, bank account, or other financial account numbers subject to PCI-DSS, except as tokenized and processed through Zettlor's designated payment processor (e.g., Stripe) as part of the normal payment flow; (c) social security numbers, driver's license numbers, passport numbers, or other unique government-issued identification numbers; (d) special categories of data as defined in GDPR Article 9; (e) biometric data for identification purposes; (f) data concerning children under 13 years of age (or applicable age of consent); and (g) any other categories of sensitive personal information as defined under applicable data protection laws.
"Software Fee" means the fee charged for access to and use of the Platform as specified in the Order Form or during signup.
"Subscription Period" means the period during which Merchant has access to the Platform, which shall automatically renew monthly unless terminated in accordance with this Agreement.
"Transaction Volume" means the cumulative gross dollar amount of all transactions processed through the Platform.
"Usage Data" means data and information about the provision, use, and performance of the Platform based on Merchant's or End Users' use of the Platform.
"Users" means any individual who uses the Platform on Merchant's behalf or through Merchant's account.
Zettlor provides a business management platform. The Platform includes various features and tools as described in the applicable Order Form, signup process, or Documentation, which may be updated from time to time.
Subject to the terms of this Agreement, Zettlor grants Merchant a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) access and use the Platform; and (b) copy and use any included software and Documentation only as needed to access and use the Platform, in each case solely for Merchant's internal business operations during the Subscription Period.
Except as expressly permitted by this Agreement, Merchant shall not (and shall not allow anyone else to):
"High Risk Activities" means any situation where the use or failure of the Platform could be reasonably expected to lead to death, bodily injury, or environmental damage, including medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.
If Zettlor gives Merchant access to Beta Products, such Beta Products are provided "AS IS" and "AS AVAILABLE" and may contain bugs, errors, or inaccuracies. Zettlor may modify, suspend, or discontinue Beta Products at any time without notice. Beta Products are excluded from the warranty in Section 11.3 and the remedies in Section 11.4 (and any service level commitments, if any). Merchant's use of Beta Products is at Merchant's sole risk, and any claims arising out of or relating to Beta Products are subject to the disclaimers in Section 12 and the limitations of liability in Section 13.
To use the Platform, Merchant must create an account and provide accurate, complete, and current information. Merchant is responsible for: (a) maintaining the confidentiality of account credentials; (b) all activities under Merchant's account and all Users' accounts; and (c) ensuring all Users comply with this Agreement. Merchant and Users must protect the confidentiality of their passwords and login credentials. Merchant will promptly notify Zettlor if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.
Zettlor may temporarily suspend Merchant's access to the Platform with or without notice if Merchant: (a) has an outstanding, undisputed balance on its account for more than thirty (30) days; (b) breaches Section 3.3 (Restrictions); or (c) uses the Platform in violation of this Agreement or in a way that materially and negatively impacts the Platform or others. Zettlor will try to inform Merchant before suspending Merchant's account when practical. Zettlor will reinstate Merchant's access to the Platform only if Merchant resolves the underlying issue.
Merchant shall pay the fees ("Fees") as specified in the applicable Order Form, pricing schedule, or as displayed during the signup process. Unless the Order Form specifies otherwise, all Fees are in U.S. Dollars and are exclusive of taxes. The specific fee structure, including any Processing Fees, Software Fees, volume thresholds, and payment timing, will be set forth in the Order Form or presented during signup.
All payments are processed through Stripe or other payment processors designated by Zettlor. (a) Where Fees are calculated as a percentage of Transaction Volume or otherwise tied to transaction proceeds, such Fees are automatically deducted from Merchant's transaction proceeds before remittance, and Merchant authorizes Zettlor to make such deductions. (b) Where Fees are not tied to transaction proceeds (e.g., fixed subscription fees, setup fees, or fees during periods with no transactions), Zettlor will charge such Fees to the payment method on file or invoice Merchant, and Merchant will pay each such invoice within five (5) days of the invoice date. If Zettlor is unable to process an automatic payment, Zettlor may invoice Merchant, and Merchant will pay within five (5) days.
If Merchant has a good-faith disagreement about the fees charged or invoiced, Merchant must notify Zettlor about the dispute before payment is due, or within thirty (30) days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together in good faith to resolve the dispute within fifteen (15) days. If no resolution is agreed, each party may pursue any remedies available under this Agreement or applicable laws.
All fees are exclusive of taxes. Merchant is responsible for all applicable duties, taxes, and levies that apply to fees, including sales, use, VAT, GST, or withholding taxes, that Zettlor itemizes and includes in an invoice. However, Merchant is not responsible for Zettlor's income taxes.
Zettlor may modify fees upon thirty (30) days' prior written notice. Continued use of the Platform after fee changes constitutes acceptance of the new fees.
Except for the prorated refund of prepaid fees allowed with specific termination rights given in this Agreement, all fees are non-refundable.
This Agreement commences upon Merchant's acceptance (the "Effective Date") and continues through the Subscription Period. The Subscription Period shall automatically renew for additional one (1) month periods unless either party gives notice of non-renewal at least thirty (30) days before the end of the current Subscription Period.
Either party may terminate this Agreement for any reason by providing notice of non-renewal at least thirty (30) days before the end of the current Subscription Period.
Either party may terminate this Agreement immediately: (a) if the other party fails to cure a material breach following thirty (30) days written notice; (b) upon notice if the other party materially breaches this Agreement in a manner that cannot be cured; (c) if the other party dissolves or stops conducting business without a successor; (d) if the other party makes an assignment for the benefit of creditors; or (e) if the other party becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than sixty (60) days.
Upon termination or expiration: (a) Merchant will no longer have any right to use the Platform; (b) upon Merchant's request made within thirty (30) days of termination, Zettlor will provide Merchant Data in a commonly used format within sixty (60) days; (c) each party shall return or destroy the other party's Confidential Information; (d) Zettlor will submit a final invoice for all outstanding fees accrued before termination and Merchant will pay the invoice according to Section 5; and (e) all licenses granted hereunder will terminate.
Except for the limited license to use the Platform granted in Section 3.2, Zettlor retains all right, title, and interest in and to the Platform, including all software, algorithms, Pricing Technology, user interfaces, designs, Documentation, and related intellectual property, whether developed before or after the Effective Date. Nothing in this Agreement transfers any ownership rights to Merchant.
Except for the limited rights granted in Sections 8.1 and 8.5, Merchant retains all right, title, and interest in and to Merchant Data.
Merchant may, but is not required to, provide Feedback, in which case Merchant provides Feedback "AS IS". Zettlor may use all Feedback freely without any restriction or obligation to Merchant.
Merchant grants Zettlor a non-exclusive, worldwide, royalty-free license to copy, display, modify, and use Merchant Data only as needed to provide and maintain the Platform and related offerings. Merchant is responsible for the accuracy and content of Merchant Data.
Zettlor may collect and analyze Usage Data, and Zettlor may freely use Usage Data to maintain, improve, enhance, and promote Zettlor's products and services without restriction or obligation. However, Zettlor may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Merchant or Users.
(a) Zettlor may use Usage Data and Merchant Data to operate, maintain, support, secure, and improve the Platform and to develop, train, and enhance Pricing Technology and other machine learning or artificial intelligence features that are part of Zettlor's products and services (collectively, "Service Improvement Purposes").
(b) In connection with Service Improvement Purposes, Zettlor will use Aggregated Data for such purposes where commercially reasonable. Where Zettlor uses data derived from Merchant Data or Usage Data that is not Aggregated Data, Zettlor will apply commercially reasonable technical and organizational measures designed to de-identify the data and reduce the risk that the data (or any resulting models) identifies Merchant or any End User, and Zettlor will not knowingly attempt to re-identify such de-identified data.
(c) Zettlor will not disclose Merchant Data to any third party for that third party's own purposes, including to train or improve that third party's general models, except (i) to Zettlor's contractors and subprocessors who process data solely on Zettlor's behalf to provide the Platform and are bound by written confidentiality and restricted-use obligations at least as protective as this Agreement, or (ii) as required by law.
(d) To the extent Merchant Data includes Personal Data (as defined under applicable data protection laws), Zettlor's processing of such Personal Data will be in accordance with applicable law and, where required, the parties' data processing agreement (DPA). Nothing in this Section 8.3 reduces or limits Zettlor's obligations with respect to Personal Data under applicable data protection laws.
(e) This Section 8.3 does not limit Zettlor's rights in Aggregated Data under Section 8.5.
Zettlor shall implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Merchant Data against unauthorized access, use, or disclosure.
Zettlor owns all right, title, and interest in and to Aggregated Data. Zettlor may use Aggregated Data without restriction for any purpose, including but not limited to: (a) operating, analyzing, and improving the Platform; (b) developing and publishing industry benchmarks, reports, analytics, and insights; (c) creating and commercializing data products and services; and (d) licensing to third parties. This right survives termination or expiration of this Agreement.
Merchant is solely responsible for obtaining all necessary consents from End Users for the collection, use, and processing of their data through the Platform. Merchant shall comply with all applicable privacy and data protection laws.
Merchant shall not (and shall not allow anyone else to) submit Prohibited Data to the Platform unless expressly authorized in writing by Zettlor. If Merchant needs to process Prohibited Data through the Platform, Merchant must first notify Zettlor and the parties must execute appropriate supplemental agreements (such as a BAA for HIPAA data or DPA for GDPR data) before any Prohibited Data is submitted.
Before submitting Personal Data governed by GDPR to the Platform, Merchant must enter into a data processing agreement with Zettlor. If the parties have a DPA, each party will comply with its obligations in the DPA, the terms of the DPA will control each party's rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.
Merchant may authorize Zettlor to send marketing communications to End Users on Merchant's behalf, subject to Merchant's prior authorization and in accordance with Merchant's instructions. Zettlor shall not send marketing communications promoting Zettlor's own services or third-party services to End Users without Merchant's express written consent. With respect to marketing communications sent by Zettlor on Merchant's behalf, Merchant is responsible for ensuring compliance with the CAN-SPAM Act, TCPA, and other applicable anti-spam and marketing laws; however, to the extent Zettlor sends communications as a sender under applicable law, Zettlor will comply with its own legal obligations.
The Platform uses Pricing Technology, including automated algorithms, machine learning systems, and artificial intelligence, to generate dynamic pricing recommendations, demand forecasts, and revenue optimization insights ("Algorithmic Outputs"). Merchant acknowledges and agrees that Pricing Technology is a tool intended to assist Merchant's decision-making and is not a substitute for Merchant's independent business judgment. Due to the nature of artificial intelligence and machine learning, information generated by these features may be incorrect or inaccurate. Platform features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight.
MERCHANT ACKNOWLEDGES AND AGREES THAT: (A) ALGORITHMIC OUTPUTS MAY CONTAIN ERRORS, INACCURACIES, OR MISLEADING INFORMATION AND MAY NOT BE ACCURATE OR RELIABLE; (B) PRICING TECHNOLOGY IS BASED ON PREDEFINED RULES, ALGORITHMS, AND HISTORICAL DATA, WHICH MAY NOT ACCOUNT FOR ALL MARKET CONDITIONS, COMPETITIVE FACTORS, OR UNFORESEEN CIRCUMSTANCES; (C) ALGORITHMIC OUTPUTS ARE RECOMMENDATIONS ONLY AND DO NOT GUARANTEE REVENUE OPTIMIZATION, INCREASED BOOKINGS, OR ANY PARTICULAR BUSINESS OUTCOME; (D) MERCHANT IS SOLELY RESPONSIBLE FOR REVIEWING, APPROVING, AND IMPLEMENTING ANY PRICING DECISIONS, AND ZETTLOR SHALL HAVE NO LIABILITY FOR PRICING DECISIONS MADE BY MERCHANT; (E) PAST PERFORMANCE OF PRICING TECHNOLOGY DOES NOT GUARANTEE FUTURE RESULTS; AND (F) ZETTLOR MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS, OR SUITABILITY OF ANY ALGORITHMIC OUTPUTS.
Merchant shall use independent judgment and discretion before relying on or implementing any Algorithmic Outputs. Merchant is solely responsible for: (a) verifying the appropriateness of any pricing recommendations for Merchant's specific market, customer base, and business circumstances; (b) ensuring compliance with applicable laws regarding pricing, including antitrust, consumer protection, and anti-discrimination laws; and (c) all consequences arising from Merchant's use or implementation of Algorithmic Outputs.
ZETTLOR DOES NOT GUARANTEE THAT USE OF THE PLATFORM OR PRICING TECHNOLOGY WILL RESULT IN INCREASED REVENUE, IMPROVED BOOKING RATES, OR ANY OTHER SPECIFIC BUSINESS OUTCOME. ALL CLAIMS REGARDING PLATFORM PERFORMANCE ARE BASED ON HISTORICAL DATA AND MAY NOT BE INDICATIVE OF FUTURE RESULTS.
"Confidential Information" means information in any form disclosed by or on behalf of a party ("Discloser") to the other party ("Recipient") in connection with this Agreement that: (a) the Discloser identifies as "confidential," "proprietary," or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the terms of this Agreement (but not its existence or Merchant's status as a customer, which may be disclosed pursuant to Section 16). Merchant's Confidential Information includes non-public Merchant Data. Zettlor's Confidential Information includes non-public information about the Platform.
Except as otherwise authorized in this Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not: (a) use Discloser's Confidential Information; nor (b) disclose Discloser's Confidential Information to anyone else. Recipient will protect Discloser's Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.
Confidential Information does not include information that: (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser's Confidential Information.
Recipient may disclose Discloser's Confidential Information to the extent required by applicable laws if, unless prohibited by applicable laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser's expense, with Discloser's efforts to obtain confidential treatment for the Confidential Information.
Recipient may disclose Discloser's Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section and Recipient remains responsible for everyone's compliance with this Section.
Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the applicable laws of the jurisdiction of its origin; and (c) it will comply with all applicable laws in performing its obligations or exercising its rights in this Agreement.
Merchant represents and warrants that: (a) Merchant, all Users, and anyone submitting Merchant Data each have and will continue to have all rights necessary to submit or make available Merchant Data to the Platform and to allow the use of Merchant Data as described in this Agreement; (b) Merchant Data does not infringe any third-party rights; (c) Merchant has obtained all necessary consents from End Users; and (d) Merchant has accurately determined whether HIPAA, CCPA, GDPR, or other data protection regulations apply to Merchant's use of the Platform and will comply with Section 8.7.
During a paid Subscription Period, Zettlor will not materially reduce the general functionality of the Platform taken as a whole for Merchant's then-current subscription plan (a "Material Functionality Reduction"), relative to the general functionality available at the beginning of that Subscription Period, except to the extent the reduction results from: (a) changes required to comply with applicable law or to address security, fraud, abuse, or operational integrity; (b) changes to or discontinuation of Beta Products; (c) changes to third-party services, platforms, or integrations not controlled by Zettlor (provided Zettlor uses commercially reasonable efforts to maintain materially similar functionality where reasonably practicable); or (d) de minimis changes that do not materially impair the Platform's general functionality taken as a whole.
If Merchant reasonably believes a Material Functionality Reduction has occurred, Merchant must provide notice to Zettlor with sufficient detail for Zettlor to understand and attempt to reproduce the issue within forty-five (45) days after Merchant first becomes aware of it. Within forty-five (45) days after receiving sufficient details, Zettlor will use commercially reasonable efforts to restore the affected general functionality or provide a commercially reasonable workaround.
If Zettlor is unable to restore the affected general functionality (or provide a workaround that materially restores it) within that period, Merchant may terminate the Agreement (or, if applicable, the affected Order Form) by written notice, and Zettlor will refund any prepaid Software Fees for the remaining unused portion of the then-current Subscription Period. This Section 11.4 states Merchant's sole and exclusive remedies for breach of Section 11.3.
ZETTLOR MAKES NO GUARANTEES THAT THE PLATFORM WILL ALWAYS BE SAFE, SECURE, OR ERROR-FREE, OR THAT IT WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. THE WARRANTIES IN SECTION 11 DO NOT APPLY TO ANY MISUSE OR UNAUTHORIZED MODIFICATION OF THE PLATFORM, NOR TO ANY PRODUCT OR SERVICE PROVIDED BY ANYONE OTHER THAN ZETTLOR. EXCEPT FOR THE WARRANTIES IN SECTION 11, THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." ZETTLOR AND MERCHANT EACH DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.
EXCEPT AS PROVIDED IN SECTION 13.4, EACH PARTY'S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT BE MORE THAN THE GREATER OF: (A) THE TOTAL FEES PAID OR PAYABLE BY MERCHANT TO ZETTLOR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM; (B) ONE THOUSAND DOLLARS ($1,000); OR (C) THE MINIMUM AMOUNT REQUIRED BY APPLICABLE LAW.
EXCEPT AS PROVIDED IN SECTION 13.4, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR REVENUES (WHETHER DIRECT OR INDIRECT), OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES RELATING TO THIS AGREEMENT, EVEN IF THE PARTY IS INFORMED OF THE POSSIBILITY OF THIS TYPE OF DAMAGE IN ADVANCE.
The limitations and waivers in Sections 13.1 and 13.2 apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.
Sections 13.1 and 13.2 do not apply to: (a) a party's indemnification obligations under Section 14; (b) a party's gross negligence or willful misconduct; (c) Merchant's payment obligations; (d) a party's breach of Section 10 (Confidentiality); or (e) claims that cannot be limited under applicable law.
THE LIMITATIONS OF DAMAGES SET FORTH IN THIS SECTION 13 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ZETTLOR AND MERCHANT.
Zettlor will indemnify, defend, and hold harmless Merchant from and against any action, proceeding, or claim that the Platform, when used by Merchant according to the terms of this Agreement, violates, misappropriates, or otherwise infringes upon anyone else's intellectual property or other proprietary rights ("Provider Covered Claims"), and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys' fees, that arise from Provider Covered Claims.
Merchant will indemnify, defend, and hold harmless Zettlor from and against: (a) any action, proceeding, or claim that Merchant Data, when used according to the terms of this Agreement, violates, misappropriates, or otherwise infringes upon anyone else's intellectual property or other proprietary rights; (b) any action, proceeding, or claim resulting from Merchant's breach of Section 3.3 (Restrictions); (c) any dispute between Merchant and End Users; (d) Merchant's failure to identify applicable regulations or provide required notification under Section 8.7; (e) Merchant's implementation of or reliance on Algorithmic Outputs; and (f) all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys' fees, that arise from such claims (collectively, "Customer Covered Claims").
The indemnifying party's obligations are contingent upon the protected party: (a) promptly notifying the indemnifying party of each covered claim; (b) providing reasonable assistance at the indemnifying party's expense; and (c) giving the indemnifying party sole control over the defense and settlement. The indemnifying party may not agree to any settlement that contains an admission of fault or materially and adversely impacts the protected party without prior written consent.
If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Zettlor may: (a) obtain the right for Merchant to continue using the Platform; (b) replace or modify the affected component of the Platform without materially reducing the general functionality; or (c) if neither (a) nor (b) are reasonable, terminate this Agreement and issue a pro-rated refund of prepaid fees for the remainder of the Subscription Period.
Zettlor's indemnification obligations will not apply to Provider Covered Claims that result from: (a) modifications to the Platform not authorized by Zettlor; (b) unauthorized use of the Platform, including use in violation of this Agreement; (c) use of the Platform in combination with items not provided by Zettlor; or (d) use of an old version of the Platform where a newer release would avoid the claim.
This Section 14, together with any termination rights, describes each protected party's exclusive remedy and each indemnifying party's entire liability for a covered claim.
Zettlor may modify, update, or discontinue features of the Platform from time to time, including to improve performance, enhance security, comply with applicable law, address fraud or abuse, or respond to third-party dependencies. Zettlor will use commercially reasonable efforts to provide notice of material changes that may adversely affect Merchant's use of the Platform. For clarity, to the extent a change constitutes a Material Functionality Reduction, Merchant's rights and remedies are governed by Sections 11.3 and 11.4. Beta Products may be modified or discontinued at any time as described in Section 3.4.
Zettlor may modify this Agreement upon thirty (30) days' prior written notice. Continued use of the Platform after such notice constitutes acceptance of the modified terms. If Merchant does not agree to the modified terms, Merchant's sole remedy is to terminate this Agreement before the changes take effect.
Zettlor may identify Merchant and use Merchant's name and logo in marketing to identify Merchant as a user of Zettlor's products and services. Merchant may revoke this right at any time upon written notice to Zettlor.
Merchant may not remove or export from the United States or allow the export or re-export of the Platform or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the Office of Foreign Assets Control ("OFAC"), or any other United States or foreign agency or authority.
Merchant represents and warrants that it is not: (a) a resident or national of a country subject to a U.S. Government embargo ("Embargoed Country"); (b) an entity organized under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the U.S. government or agencies, including OFAC's Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) fifty percent (50%) or more owned by any party designated on any of the above lists.
Zettlor may terminate this Agreement immediately without notice or liability to comply, as determined in Zettlor's sole discretion, with applicable export controls and sanctions laws and regulations.
Neither party will take any action that would be a violation of any applicable laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Zettlor or Merchant in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.
The Platform is deemed a "commercial item" or "commercial computer software" according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is "commercial computer software documentation" according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Platform by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.
Before initiating any arbitration or court proceeding, the parties agree to first attempt to resolve any dispute, controversy, or claim arising out of or relating to this Agreement ("Dispute") through good faith informal negotiations. A party seeking to initiate informal dispute resolution must send a written notice ("Dispute Notice") to the other party describing the nature of the Dispute, the specific relief sought, and the contact information of the party initiating the Dispute. The parties agree to participate in good faith informal efforts to resolve the Dispute for a period of forty-five (45) days from receipt of the Dispute Notice ("Informal Resolution Period"). The statute of limitations and any filing deadlines shall be tolled during the Informal Resolution Period.
If the parties are unable to resolve a Dispute through informal negotiations within the Informal Resolution Period, such Dispute shall be finally resolved by binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules as modified by any applicable Supplementary Rules (including the Mass Arbitration Supplementary Rules, if applicable). The arbitration shall be conducted by a single arbitrator mutually selected by the parties, or if the parties cannot agree, appointed by the AAA. The arbitration shall be conducted in the English language and shall take place in Wilmington, Delaware, or at another location mutually agreed by the parties.
EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY'S CLAIMS AND MAY NOT PRESIDE OVER ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING UNLESS BOTH PARTIES EXPRESSLY AGREE OTHERWISE IN WRITING.
EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE.
(a) If the AAA determines that a group of arbitrations qualifies for administration under the AAA's then-current Mass Arbitration Supplementary Rules and applicable fee schedule for non-consumer and non-employment/workplace matters (a "Mass Arbitration"), the parties agree that such Mass Arbitration will be administered in accordance with those Mass Arbitration Supplementary Rules, as modified from time to time, and any applicable AAA fee schedules.
(b) The parties agree to comply with all mass arbitration filing and administrative requirements imposed by the AAA for a Mass Arbitration (including any case-filing spreadsheet requirements and representative affirmations), and to participate in any process-arbitrator and/or global mediation stage required or permitted by the Mass Arbitration Supplementary Rules, unless the parties jointly opt out of mediation in a writing submitted to the AAA (if permitted by the AAA rules).
(c) The Process Arbitrator (if appointed) will have the authority provided under the Mass Arbitration Supplementary Rules, including to resolve disputes regarding satisfaction of contractual preconditions to arbitration (including Section 18.1), arbitrability and administrative issues, the process for selecting merits arbitrator(s), and the location/format of merits proceedings.
(d) Unless the parties expressly agree otherwise in a signed writing, each arbitration will proceed on an individual basis. Nothing in this Agreement authorizes class, collective, representative, or private-attorney-general arbitration, and the arbitrator(s) may not consolidate more than one party's claims.
(e) If the AAA declines to administer or continue administering a Mass Arbitration for reasons other than the failure of a party to comply with AAA filing requirements or to pay required fees, the parties will promptly meet and confer to select an alternative reputable arbitration administrator that offers mass-arbitration procedures substantially similar to the AAA's Mass Arbitration Supplementary Rules. If the parties cannot agree within fifteen (15) days, either party may request that a court of competent jurisdiction appoint an administrator, and the arbitration agreement in this Section 18 will otherwise remain in effect.
Notwithstanding the foregoing, either party may: (a) bring an individual action in small claims court if the Dispute qualifies; (b) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of intellectual property rights without the need to post a bond; or (c) pursue claims that cannot be subjected to arbitration under applicable law.
You have the right to opt out of this arbitration agreement by sending written notice of your decision to opt out to legal@zettlor.com within thirty (30) days of first accepting these Terms and Conditions. Your opt-out notice must include: (a) your name; (b) your business name and address; (c) the email address associated with your account; and (d) a clear, unequivocal statement that you wish to opt out of the arbitration agreement. If you validly opt out, neither you nor Zettlor will be bound by the arbitration provisions of this Section 18. Opting out has no effect on any other provisions of this Agreement.
Any Dispute arising out of or related to this Agreement must be filed within one (1) year after such Dispute arose, regardless of any statute or law to the contrary. Any Dispute not filed within one (1) year shall be permanently barred.
Each party shall bear its own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought was frivolous or was brought for an improper purpose.
All aspects of the arbitration proceeding, including any award, shall be strictly confidential unless otherwise required by law or to enforce the arbitration award.
The laws of the State of Delaware will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. To the extent any Dispute is not subject to arbitration under Section 18, the parties will bring any legal suit, action, or proceeding in the state or federal courts located in Delaware and each party irrevocably submits to the exclusive jurisdiction of such courts.
Despite Section 19.1, a breach of Section 10 (Confidentiality) or the violation of a party's intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 or violation of a party's intellectual property rights, the non-breaching party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond.
Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
All notices under this Agreement must be in writing. Notices to Zettlor shall be sent to ops@zettlor.com. Notices to Merchant shall be sent to the main email address on Merchant's account. Notices will be deemed given upon confirmed delivery if by email, registered or certified mail, or personal delivery; or two days after mailing if by overnight commercial delivery.
If any term of this Agreement is determined to be invalid or unenforceable, the remaining terms will remain in full force and effect. However, if Section 18.3 (Class Action Waiver) is found invalid or unenforceable as to a particular Dispute, then the entirety of Section 18 shall be null and void as to that Dispute.
Any waiver, modification, or change to this Agreement must be in writing and signed or electronically accepted by each party. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.
This Agreement is the only agreement between the parties about its subject and supersedes all prior or contemporaneous statements about its subject. Zettlor expressly rejects any terms included in Merchant's purchase order or similar document, which may only be used for accounting or administrative purposes.
Neither party will be liable for a delay or failure to perform its obligations if caused by an unforeseen event outside a party's reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts ("Force Majeure Event"). Examples include unpredicted natural disasters, war, pandemic, riot, act of terrorism, or public utility or internet failure. However, this section does not excuse Merchant's obligation to pay fees. Either party may terminate an affected Order Form upon notice if a Force Majeure Event prevents the Platform from materially operating for thirty (30) or more consecutive days.
The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.
There are no third-party beneficiaries of this Agreement.
You consent to receive communications from Zettlor electronically. Zettlor may communicate with you by email or by posting notices on the Platform. You agree that all agreements, notices, disclosures, and other communications that Zettlor provides to you electronically satisfy any legal requirement that such communications be in writing.
The following sections will survive expiration or termination of this Agreement: Section 2 (Definitions), Section 7 (Intellectual Property), Section 8.2 (Usage Data), Section 8.3 (Machine Learning), Section 8.5 (Aggregated Data), Section 9 (Pricing Technology and Algorithmic Disclaimers), Section 10 (Confidentiality), Section 12 (Disclaimer of Warranties), Section 13 (Limitation of Liability), Section 14 (Indemnification), Section 17 (Export Controls and Compliance), Section 18 (Dispute Resolution), Section 19 (General Provisions), and any accrued payment obligations.
Section titles are for convenience and reference only. All uses of "including" and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.
For questions about these Terms and Conditions, please contact:
Zettlor, Inc.
General: ops@zettlor.com
Website: www.zettlor.com
BY USING THE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.