Provisioning of the Zerocium Platform. Subject to Customer’s compliance with the terms and conditions of this Agreement, Zerocium will make the Zerocium Platform available to Customer on the terms and conditions set out in this Agreement, provided that: (i) Customer has read and accepted and is in compliance with its obligations under the applicable terms of use related to all applicable Third Party Messaging Platforms, Pre-Integrated Third Party Business Applications, and Custom-Integrated Business Applications; and (ii) has taken all steps as necessary to enable interoperability between the Zerocium Platform and all applicable Third Party Messaging Platforms, Pre-Integrated Third Party Business Applications, and Custom-Integrated Business Applications, directly or via Customer’s Clients, to access these messaging channels as a business.
The client is able to configure and administer its digital media content (“media content”) for usage on smartphones and tablets (together: “devices”) via the platform.
The client is able to digitally distribute its existing media content as individual messages to end clients.
Zerocium provides the platform to the client as technical infrastructure. Zerocium will not provide content of its own.
The platform is available 99% of the time. The availability signifies, in relation to the duration of a contract year, the ratio of the period for which the client was able to access the platform with existing Internet connection (excluding the period in which access was unavailable due to intended maintenance work or due to incidents over which Zerocium has no control) to the length of the entire contract year.
Zerocium uses the service of messenger platforms like WhatsApp, Viber, Telegram and Email but has no influence whatsoever either on their technical and contractual configuration or the scope of services provided by such messenger platforms. The messenger platforms may at any time modify or even terminate their scope of services which may therefore prevent the operations of Zerocium.
It is agreed between the parties that restrictions to the service, caused by modifications on part of the messenger platforms, may lead to the modification of the services or the termination of such on the part of Zerocium. The client and Zerocium each has an exceptional right to terminate in this particular case. Upon termination, Zerocium will be freed from its contractual obligation towards the client.
All further functionalities and system requirements of the platform result from the specification of services or the current status of the self-service interface valid at the time the contract was made or the order placed.
Zerocium provides its clients with a geographically unrestricted, non-exclusive and non-transferable right to use the platform solely for the fulfilment of the purpose of the respective usage agreement. The right of use ceases to exist after the expiration of the contract.
The client is not permitted (i) to rent out, lease, lend, reproduce, resell the platform or the access to such or distribute or pass it on in any other way either via the Internet or any other downstream public or private data network; (ii) to use the platform to develop other activities; (iii) to activate and use the functionalities of the platform of which the client has not been conceded rights of use; (iv) to change, translate, duplicate, decompile or investigate the functions of the source code of the platform except unless obligatory by law as permitted in accordance with § 69d or § 69e German Copyright Law; as well as (v) to eliminate, disguise or modify legal information especially in regards to Zerocium’s intellectual property rights.
Zerocium provides certain support services to its clients free of charge. The extent of those results from the assignment of the mission.
Other support services, requested by the client, will be invoiced by Zerocium to the client on a time and material basis. These include particular consulting and technical services. The client will be informed and its written consent obtained before any such costs are incurred.
Customer will generally have access to Zerocium’s technical support from 10:00am to 5:00pm ET on weekdays (other than holidays observed by Zerocium) through email support, or through the web site using our chat widget.
Fees. Customer will pay to Zerocium the applicable fees described on the Zerocium Website (the “Fees”) during the Term in accordance with the payment terms set out herein.
Third Party Messaging Platform Fees. For greater clarity, Zerocium’s Fees do not include any charges that may be assessed by Third Party Messaging Platforms for access to or use of a channel. Such charges shall be the responsibility of Customer, whether paid directly to the Third Party Messaging Platforms or whether such access is resold through Zerocium, in which case Zerodium shall advise Customer in writing as to the applicable charges and Customer shall have the right to accept such charges or decline them and not use the associated channel.
Payment Terms:
Customer Warranty. Customer represents and warrants to, and covenants with, Zerocium that (1) the Customer Data will only contain Personal Data in respect of which Customer has provided all notices and disclosures (including to each Data Subject), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Zerocium to provide the Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Data, including by or to Zerocium and to or from all applicable third parties (including third party providers of any Third Party Messaging Platforms); and (2) by connecting the WhatsApp, Viber, Telegram, Email Business Solution via the Zerocium Platform, the Customer will be in compliance with the WhatsApp, Viber, Telegram, Email Business Solution Terms.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF ZEROCIUM IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $500CAD, WHICHEVER IS THE LESSER. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL ZEROCIUM’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL ZEROCIUM BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Term. This Agreement will commence on the Effective Date and continue to be in effect until your subscription has been terminated in accordance with the terms Customer agreed to on the Zerocium website at time of signup (the “Term”). For greater certainty, if Customer has subscribed to an ongoing subscription, then such subscription will automatically renew at its expiry for the same period of time, at the then-current subscription rate described on the Zerocium Website.
Termination For Convenience. Either Party may elect to terminate this Agreement and your subscription to Zerocium services as of the end of your then current Term by providing notice, on or prior to the date thirty (30) days preceding the end of such Term. For clarity, unless this Agreement and your subscription is so terminated, your subscription will renew for a Term equivalent in length to the then expiring Term.
Refunds and Termination Charges. You will not be entitled to any refunds or credit of any Fees, pro rata or otherwise, if you elect to terminate this Agreement prior to the end of your Term. If you terminate this Agreement prior to the end of your Term, in addition to other amounts you may owe Zerocium, you must immediately pay any then unpaid Fees associated with the remainder of your Term. This amount will not be payable by you in the event you terminate as a result of a material breach of this Agreement by Zerocium, provided that you provide advance notice of such breach to Zerocium and afford Zerocium not less than thirty (30) days to reasonably cure.
Termination for Cause. A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by you in accordance with this section, Zerocium will, to the extent permitted by applicable law, refund you any prepaid fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by Zerocium in accordance with this section, you will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve you of your obligation to pay any fees payable to Zerocium for the period prior to the effective date of termination.
Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason.