TERMS OF SERVICE
ZOOM® ON DEMAND and on-Premise SaaS LICENSING AGREEMENT
STANDARD TERMS AND CONDITIONS
IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “PRODUCTS”) OF ZOOM COMMUNICATIONS, INC. (“ZOOM”) AND HOLISTIC COMMUNICATION PTY LTD (“HOLISTIC”)IS CONDITIONAL UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS.
This is a legal agreement (“Agreement”) between You and Holistic for use of the Products supplied by ZOOM which You selected or initiated. “You” refers to the individual who is using or accessing the Products or is registered and/or has provided his or her credit card or other payment mechanism for the Products either directly with Holistic or through a third party or, if an individual is purchasing the Products on behalf of an entity and is authorized to purchase the Products on behalf of such entity, then “You” refers to such entity. If You do not agree with the terms of this Agreement, then do not use or access the Products or, when applicable, click the “Cancel” button and do not purchase the Products.
Any software associated with the Products and website is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
Zoom and Holistic will provide the Products in accordance with this Agreement. In order to use certain Products You may be required to download content, software, and/or required to agree to additional terms and conditions. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Products which You choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of that Product. Holistic/Zoom may at its sole discretion, discontinue the Products or modify the features of the Products from time to time without prior notice. Use of the Products requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Products involves hardware, software, and Internet access, Your ability to use such Products may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.
2. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF YOUR COMMUNICATIONS.
You may be required to provide information about Yourself in order to register for and/or use certain Products. You agree that any such information shall be accurate. You may also be asked to choose a user name and password. You are entirely responsible for maintaining the security of Your user name and password and agree not to disclose such to any third party. You agree that You are solely responsible for the content (“Content”) sent by You or displayed or uploaded by You in using the Products. You agree that You will not use the Products to send unsolicited commercial e-mail outside Your company or organization in violation of applicable law. You further agree not to use the Products to communicate any message or material that is harassing, libelous, threatening, obscene, and indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. You further agree not to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act. You further agree not to upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Products in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Zoom or other users of Products. Recognizing the global nature of the Internet, You also agree to comply with applicable local rules or codes of conduct (including codes imposed by Your employer) regarding online behaviour and acceptable content and the transmission of technical data exported from the United States or the country in which You reside. Holistic and Zoom reserve the right to investigate and take appropriate action against anyone who, in Zoom´s or Holistic’s sole discretion, is suspected of violating this provision, including without limitation, reporting You to law enforcement authorities. Use of the Products is void where prohibited. Although Zoom and Holistic are not responsible for any Content in violation of this provision, Zoom or Holistic may delete any such Content of which Zoom or Holistic becomes aware, at any time without notice to You. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Products. You understand and agree that by displaying, exchanging or transmitting Content using the Products, You automatically grant (and warrant and represent You have a right to grant) to Zoom and Holistic the right to forward and display the meeting Content to others participating in a Zoom meeting with you.
3. RESPONSIBILITY FOR CONTENT OF OTHERS.
It is possible that other users of the Products (“Users”) may violate one or more of the above prohibitions. Zoom and Holistic
assumes no responsibility or liability for such violation. If You become aware of any violation of this Agreement in connection with use of the Products by any person, please contact Holistic at firstname.lastname@example.org. Zoom and Holistic may investigate any complaints and violations that come to their attention and may take any action that they believe to be appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. However, because situations and interpretations vary, Zoom and Holistic also reserve the right not to take any action. Under no circumstances will Zoom and Holistic be liable in any way for any data or other content viewed while using the Products, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content. If at any time You are not happy with the Products, Your sole remedy is to cease using the Products.
You affirm that You are of legal age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Although we cannot absolutely control whether minors gain unauthorized access to the Products, access may be terminated without warning if we believe that You are underage or otherwise ineligible.
You agree that Holistic may charge to Your credit card or other payment mechanism selected by You and approved by Holistic (“Your Account”) all amounts due and owing for the Products, including Product fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. Zoom or Holistic may change prices at any time, including changing from a free service to a paid service and charging for Products that were previously offered free of charge; provided, however, that Zoom or Holistic will provide You with prior notice and an opportunity to terminate Your Account if Zoom or Holistic changes the price of a Product to which You are subscribed and will not charge you for a previously free Product unless you have been notified of the applicable fees and agreed to pay such fees. You agree that in the event Zoom or Holisticis unable to collect the fees owed to Holistic for the Products through Your Account, Zoom or Holistic may take any other steps deemed necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Holistic and Zoom in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that HolisticHolistic may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
6. LIMITATIONS ON USE.
The Products may be used for internal business or consumer purposes only. You will not reproduce, resell, or distribute the Products or any reports or data generated by the Products for any purpose unless You have been specifically permitted to do so under a separate agreement with Zoom. You will not offer or enable any third parties to use the Products purchased by You, display on any website or otherwise publish the Products or any Content obtained from a Product (other than Content created by You) or otherwise generate income from the Products or use the Products for the development, production or marketing of a service or product substantially similar to the Products. You shall not engage in any activity or use the Products in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Products, or any servers or networks connected to the Products or Zoom’s security systems.
7. PROPRIETARY RIGHTS.
Zoom and Holistic/or its suppliers, as applicable, retain ownership of all proprietary rights in the Products and in all trade names, trademarks, service marks, logos, and domain names (“Zoom Marks”) associated or displayed with the Products. You may not frame or utilize framing techniques to enclose any Zoom Marks, or other proprietary information (including images, text, page layout, or form) of Zoom without express written consent. You may not use any meta tags or any other “hidden text” utilizing Zoom Marks without Zoom’s express written consent.
You may terminate Your Account and this Agreement through the Holistic website. If you have purchased a Product for a specific term, such termination will be effective on the last day of the then-current term. If You fail to comply with any provision of this Agreement, Zoom and Holistic may terminate this Agreement immediately without notice. Sections 2 through 15, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Products and destroy any copies of associated software within Your possession and control. You will not destroy or attempt to harm any Products or associated software on Zoom’s servers or Zoom’s network.
10. EXPORT RESTRICTIONS.
You acknowledge that the Products, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Products or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
11. INJUNCTIVE RELIEF.
You acknowledge that any use of the Products contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Products, may cause irreparable injury to Zoom, its affiliates, suppliers and any other party authorized by Zoom to resell, distribute, or promote the Products (“Resellers”), and under such circumstances Zoom, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
12. NO WARRANTIES
YOU UNDERSTAND AND AGREE THAT THE PRODUCTS ARE PROVIDED “AS IS” AND ZOOM, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ZOOM, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCTS OR THAT THE PRODUCTS WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE PRODUCTS IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE PRODUCTS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCTS REMAINS WITH YOU. HOLISTIC DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. ZOOM CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE PRODUCTS. USE IS AT YOUR OWN RISK. You agree to indemnify, defend and hold harmless Zoom, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Your use of the Products, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Products are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Zoom, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
14. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ZOOM, OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ZOOM, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ZOOM’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCTS (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
15.1 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales or Australian federal law. Any judicial proceeding with respect to this Agreement, or any of its Schedules, may be brought in any court of competent jurisdiction in the State of New South Wales. The parties expressly accept the jurisdiction of any such court and irrevocably agree to be bound by any judgment rendered thereby and waive any objections as to the personal jurisdiction of any such courts or as to venue of any proceeding brought in any such court.
15.2 ENTIRE AGREEMENT.
This Agreement, together with the Schedules, which has been signed by both parties, constitutes the entire agreement between the parties regarding Subscriber´s use of the Software. No purchase orders, other ordering documentation, email or any hand written or typewritten text which purports to modify or supplement this Agreement shall add to or vary the terms and conditions of this Agreement. This Agreement replaces and supersedes any prior verbal understanding, written communications or representations made by the parties regarding the subject matter contained in this Agreement. The parties further agree that this Agreement and all of its Schedules are the product of negotiations between the parties and hereby agree that none of this Agreement´s terms, nor any of the terms of any of its Schedules, shall be construed or interpreted against either party.
15.3 SUBSCRIBER TO REIMBURSE GST
- (1) All payments to be made by Subscriber under this agreement are calculated without regard to GST. If any such payment is for a Taxable Supply by Holistic, the amount of the payment shall be increased by the amount of GST imposed on the Taxable Supply in question.
- (2) Where Zoom or Holistic have become subject to any penalties or interest as a result of late payment of GST because of the failure of Subscriber to comply with the terms of this clause, then Subscriber must pay to Holistic an additional amount on demand equal to the amount of those penalties and interest.
For all purposes of this agreement, except to the extent that such interpretation shall be excluded by or be repugnant to the context:
- (1) GST has the meaning given to that term in the GST Act.
- (2) GST Act means the act entitled A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time.
- (3) Taxable Supply has the meaning given to that term in the GST Act.
- (4) The obligation of Subscriber to pay GST under this clause is subject to Holistic providing a valid tax invoice under the GST Act.
The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales and the Federal Court of Australia, and the courts of appeal from them.
No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction.
15.5 AMENDMENTS; FUTURE SCHEDULES.
The parties hereby agree future orders of Software, Maintenance and Support Services and/or Professional Services may be added or modified under the terms and conditions of this Agreement from time to time.
Subscriber may issue new purchase orders for additional orders of Software and Maintenance Services. If Subscriber does not use purchase orders, new order schedule amendments for Software Maintenance and Support Services may be added. Additional Professional Services require a Statement of Work Schedule to be added to the terms and conditions of this Agreement. All amendments and modifications to this Agreement or the Schedules shall be in a signed writing to be binding on the parties.
In the event Zoom or Holistic issues any press releases, case histories or other marketing documents that include statements about or references to Subscriber, Zoom or Holistic will obtain Subscriber´s prior written consent. The parties shall not be liable for any failure to perform due to causes beyond its reasonable control. The failure to enforce any right will not be deemed a waiver of such or any other right, including the right to enforce a subsequent breach of the same obligation. The parties are independent contractors and this Agreement will not be construed as a teaming agreement or joint venture. This Agreement may be executed in counterparts, each of which will be considered an original, but all counterparts together will constitute one agreement. A facsimile of a signed copy of this Agreement received from Subscriber may be relied upon as an original. The parties executing this Agreement represent and warrant they have the authority to enter into this Agreement on behalf of their respective party.
15.7 MEDIATION AND ARBITRATION
A party must not start court proceedings (except proceedings seeking interlocutory relief or proceedings for the recovery of unpaid Fees) unless it has complied with this Section.
- (a) Any dispute or difference (Dispute) between the parties arising out of or in connection with this agreement will be submitted to mediation administered by the Institute of Arbitrators and Mediators Australia or any successor organisation (IAMA) at the request of the parties.
- (b) The mediator will be an independent person agreed between the parties or, failing agreement, a mediator will be appointed by the President of the IAMA.
- (c) Any mediation meetings and proceedings under this clause must be held in Sydney.
- (a) If the Dispute is not settled within 28 days (or any other period agreed to in writing between the parties) after the appointment of a mediator under the preceding clause, the Dispute will be submitted to arbitration in accordance with, and subject to, the IAMA Rules for the Conduct of Commercial Arbitrations.
- (b) The arbitrator will be an independent person agreed between the parties or, failing agreement, an arbitrator will be appointed by the President of the IAMA. The arbitrator may not be the same person as the mediator appointed under the preceding clause.
- (c) The arbitration will be conducted and held in accordance with the laws of New South Wales and any arbitration meetings and proceedings must be held in Sydney.
Despite the existence of a dispute or difference, each party must continue to perform this agreement. Choice of Law and Forum.
Subscriber agrees to implement reasonable controls to ensure compliance with the intended use of Software authorized by this Agreement. Zoom/Holistic reserves the right to perform a compliance audit of Subscriber´s deployment and use of the Software at any time during Subscriber´s normal business hours, upon reasonable written notice and at Zoom´s/Holistic expense provided, however, audits shall be conducted no more than one (1) time in any twelve (12) month period unless the last audit conducted detected use of the Software not in compliance with terms of this Agreement, and such audit must not access the Subscriber Technology, other than the Software, the Developed Code or the Customizations.
15.9 Waiver and Severability.
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
15.10 General Provisions.
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed an order form referencing a separate agreement governing your use of the Products, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. Zoom and Holistic may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Zoom and Holistic will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within five (5) business days of posting changes to this Agreement, they will be binding on You. If You do not agree with the changes, You should discontinue using the Products. If You continue using the Products after such five-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Products, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to Zoom and Holistic under this Agreement must be provided to the email address set forth in Section 9 above, or other contact information as provided by Zoom or Holistic for such purpose. Any and all rights and remedies of Zoom and Holistic upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Zoom and Holistic, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.
15.11 PROFESSIONAL SERVICES:
A. Performance: In the event Holistic performs Professional Services on behalf of Subscriber, the Professional Services Fees will be listed on an order Schedule, and time of performance, Customizations, deliverable, Developed Code, Training and any other special terms and conditions shall be described on the Statement of Work attached as a Schedule. Unless otherwise specified in a Schedule, the Professional Services shall be performed on a time and materials basis. If Subscriber requests additional Professional Services, Holistic shall provide a quote and if agreement is reached on the costs for providing the additional Professional Services, new Schedules may be added to this Agreement from time to time by way of an amendment. Holistic will perform all Professional Services in a professional and workmanlike manner and to industry standards. Professional Services may depend on the completion of certain tasks or schedules within Subscriber´s exclusive control and, therefore, Holistic´s inability to perform, which is based on Subscriber´s failure to complete said tasks or meet time schedules, shall not be deemed a breach of this Agreement by Zoom.
B. Technology Ownership: Unless expressly described in an attached Schedule to the contrary, no Professional Services performed by Holistic resulting in Customizations for Subscriber shall change the ownership rights in either Subscriber Technology or Holistic Technology. Subscriber hereby grants to Zoom access to use any Subscriber Technology within the terms and conditions of licenses held by the Subscriber solely to the extent necessary to perform the Professional Services under this Agreement. Subscriber shall retain all right, title and interest in the Developed Code. Except for the rights granted to the other party under this Agreement, Subscriber shall retain all right, title and interest to Subscriber Technology and Holistic shall retain all right, title and interest to the Holistic Software Technology. By definition, a license right is granted to the other party to use Customizations, but neither party may use the Customizations for the benefit of a Competitor of Zoom/Holistic or the Subscriber. For this purpose, a Competitor of the Subscriber is an entity that is in the same business as the Subscriber or any entity that is notified by the Subscriber to Holistic Software, as a competitor of the Subscriber from time to time.
The parties agree to use each other´s Confidential Information solely for the purposes of furtherance of the business relationship between the parties, as provided in this Agreement, and to hold the other party´s Confidential Information in confidence during the period contracted and for a period of five (5) years from any termination date. Confidential Information means A party agrees that upon termination of this computer systems or network of a party in any form available to third parties, other than employees or agents on a need to know basis or consultants or other third parties under nondisclosure agreements at least as strict as this Agreement, provided those consultants or third parties are not known to be competitors of the disclosing party. The receiving party is liable for all misuse by consultants or other third parties of disclosing party´s Confidential Information, or for the use of the disclosing party´s Confidential Information for any purpose not contemplated by this Agreement, including but not limited to developing competitive products. Confidential Information does not include that which:
(i) is legally in the receiving party´s possession at the time of disclosure without the obligation of confidentiality;
(ii) is or becomes part of the public knowledge or literature, not as a result of any action or inaction of the receiving party;
(iii) is approved for release by written authorization of the disclosing party or
(iv) is independently developed by the receiving party without access to the Confidential Information.
In the event the receiving party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, such party will promptly notify the other party in writing to allow intervention in response to such order.