Terms of Service

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Terms of Services Agreement Updated 5/16/2025

Subject to the terms and conditions of this Terms of Services Agreement (this “Agreement”), dated as of the effective date set forth in the Order (the “Effective Date”), Zoomph, Inc., a Delaware corporation (“we,” “our” or “Zoomph”) provides access to and use of certain Software and Services described below to you (“you,” “your” or “Customer”).

Our Software and Services are designed to help sports and media organizations evaluate sponsorship performance across social media and broadcast content.  Our suite of analytics products is incorporated in our platform including tools for brand visibility analysis, media valuation, benchmarking, and reporting software platform along with a website through which Customer, its Affiliates and its Authorized Users may access and use such software platform (collectively, the “Software”).  We may provide you with access to the Software and generated content through the Services described in further detail below and specifically identified in your Order.  If you are a developer or otherwise access, use, interface to, or utilize our proprietary application programming interface (“APIs”), developer services, and associated software as part of your access to the Software or receipt of our Services, then the terms in Sections 1.c, also apply to your use of our APIs and our developer terms in addition to the other terms and conditions of this Agreement.  Our APIs are considered part of our Software and allowing you access to the APIs is part of our Services.

Capitalized terms that are used as defined terms but not defined in context in this Agreement have the meanings given to such terms in Section 15 below.  The parties hereto agree as follows:

  1. Acceptance; Right to Access and Restrictions.
    1. Acceptance. By executing an Order with us or otherwise accessing or using our Software or Services, you also accept the terms of this Agreement and agree you are legally bound by its terms.  The individual registering to use any Software and receive any Services on your behalf represents and warrants to us that such individual is fully and duly authorized to agree to be bound by this Agreement on your behalf.  If you do not agree to this Agreement, do not register to use the Services or otherwise access or use any Software.
    2. Software Authorization. Provided that you, your Affiliates and your Authorized Users comply with this Agreement, we hereby authorize you and your Affiliates, during the Term, and on a non-exclusive and non-transferable (except as described in Section 14.e) basis, to access and use the Software, including any data and other content and materials we make available to you through the Software, in each case provided that such access and use is (i) by and through your Authorized Users only, (ii) remotely on a “software as a service” basis and solely as (and in the form) in which we have provided the Software, (iii) solely for the Permitted Use, and (iv) strictly in accordance with this Agreement.
    3. API License. Subject to the terms and conditions of this Agreement, if your Order states that we are granting access to our API to you, then: (i) we grant you, during the Term, a limited, non-exclusive and non-transferable (except as described in Section 14.e) license (without the right to sublicense) to use and make calls to the API for the purposes of accessing the Services as permitted herein; and (ii) we will provide access instructions and API documentation to you promptly following your execution of the Order.  If your Order does not state that we are granting access to our API to you, then we will deliver the specified Reports to you in the manner described in your Order.
    4. Reports. The Software is designed to, among other things, generate certain reports, analyses and documentation like valuations and metrics specific to you from the processing of Your Data, Zoomph Materials, or Third-Party Materials through the Software and that are displayed and made available to you for export in the Software (“Reports”).  You may make copies of the Reports made available to you through the Software through the ordinary use of any “print,” “download,” “export” or similar features or functionality made available to your Authorized Users in the Software.  You shall own Your Data included in the Reports and we shall own all other interest in the Reports, the copyright in the underlying template, design, format and “look and feel” of, and the original and unique compilations, selections and arrangements of data and materials within the Reports, our or a third-party, or our licensors’ data and materials (including Zoomph Materials and Third-Party Materials) that we may include in or use in generating the Reports.  The right we grant to you in your use of copies of the Reports is subject to our rights to create and use Derived Data as set forth in Section c below.  Solely to the extent necessary to use or exploit the specific copies of any Reports provided to you through the Software in accordance with this Agreement, and provided that you, your Affiliates and your Authorized Users comply with this Agreement, we hereby grant to you and your Affiliates a non-exclusive, non-transferable (except as described in Section 14.e), right and license to copy, use, adapt, distribute and display the Report (excluding Your Data included therein) during the Term.  You understand, acknowledge and agree that we will have no obligation to retain copies of any Reports on your behalf following the expiration or termination of the subscription term in the applicable Order.
    5. Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the Software, Documentation, Third-Party Materials, data and other content and materials we make available to you through the Software (collectively, but excluding Your Data, the “Zoomph Materials”).  You must not, and you must not permit any other person or entity to, access or use the Zoomph Materials except as we’ve expressly authorized in this Agreement and, in the case of any Third-Party Materials (as defined below) we provide with or as part of the Zoomph Materials, as allowed in any additional applicable third-party license agreement terms as described in Section 8.f below.  Without limiting the generality of the preceding sentence, except as we’ve expressly authorized in this Agreement, you, your Affiliates and your Authorized Users must not do any of the following:
      1. copy, modify, adapt, translate or create derivative works or improvements of the Software or Zoomph Materials or any portion thereof;
      2. rent, lease, lend, sell, sublicense, assign (except as permitted in Section 14.e), distribute, publish, transfer or otherwise make available the Zoomph Materials or Software or any features or functionality of the Zoomph Materials or Software to any other person or entity for any reason, including by making the Zoomph Materials or Software available through any time-sharing, service bureau or software as a service arrangement;
  • combine or integrate the Software or Zoomph Materials with any software, technology, services, applications or materials not expressly authorized by us;
  1. download or export any Software or Zoomph Materials for use in any software product, service, application, technology or solution other than as expressly authorized by us;
  2. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive, gain access to or discover the source code of the Software or the underlying structure, ideas, know-how, algorithms or methodology relevant to the Software or used to create Zoomph Materials;
  3. input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or that contain, transmit or activate any Harmful Code;
  • bypass, breach or disable any security device, copy control, digital rights management tool or other protection used by Software or the Zoomph Materials;
  • remove any proprietary notices from the Zoomph Materials or any permitted copies thereof;
  1. share an Authorized User’s access credentials with any person or permit use of an Authorized User’s access credentials by any person, other than the Authorized User with whom the access credentials are associated;
  2. attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Zoomph Materials, (B) the server on which the Zoomph Materials are stored, (C) any server, computer or database connected to the Software, or (D) our ability to provide services to any other person or entity;
  3. access or use the Software or Zoomph Materials in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
  • access or use the Software or Zoomph Materials for purposes of (A) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Software or Zoomph Materials, or (B) disclosing to our competitors, for any purpose, otherwise non-public information about the Software or Zoomph Materials;
  • use or access the Software, Zoomph Materials or Third-Party Materials for any law enforcement purpose or surveillance purposes; or
  • knowingly aid or assist any Affiliate, Authorized User or other person or entity in taking any of the actions prohibited by this Section 1.d.
  1. Responsibility for Affiliates and Authorized Users. You will require your Authorized Users to comply with (and will not knowingly enable them to violate) applicable law and this Agreement.  You will ensure your Affiliates’ and Authorized Users’ compliance with this Agreement and be responsible and liable to us for any act or omission of an Affiliate or Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf) that would be a breach or violation of this Agreement had you performed the act or omission yourself.  You agree that we do not have, and will not have, any obligation whatsoever to your Authorized Users.
  1. Our Services.
    1. Services – Generally. Provided that you, your Affiliates and your Authorized Users comply with this Agreement, we will provide to you the following services (the “Services”) during the Term: (i) the hosting, management and back-end operation of the Software to make the same available for remote electronic access and use by you, your Affiliates and your Authorized Users over the Internet in accordance with the authorizations granted above; (ii) service offerings and features described in your Order; (iii) the Support Services described in Section 3 below; (iv) the Implementation Services described in Section 4 below; and (v) any other Services we expressly agree to provide in an Order.
    2. Changes to the Software. We may make any changes to the Services and Software (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Software) that we deem necessary or useful to improve the Services and Software or for any other reason, from time to time in our discretion.  Such changes may include upgrades, bug fixes, patches, error corrections, modifications, configurations, enhancements, improvements and/or new features (collectively, “Updates”).  All Updates shall be deemed a part of the Software governed by all the provisions of this Agreement pertaining thereto. 
    3. Subcontractors. You understand and agree that we may, in our discretion, engage subcontractors to aid us in providing the Software and performing our Services under this Agreement, but we will remain liable to you for any act or omission by such subcontractors that would be a breach or violation of this Agreement.  For example, we may use a reputable hosting provider that implements and maintains commercially reasonable security programs, policies, procedures, controls and technologies for cloud-based infrastructure and hosting and storage services for the Software, and such hosting services provider will host and store certain portions of Your Data that is processed through the Software.  You hereby specifically approve and consent to our use of third-party service providers.  Notwithstanding anything to the contrary in this Agreement, you further agree that we cannot guarantee or ensure the performance of any third-party services provider to the terms of this Agreement, and remediation of a breach by a third-party services provider is limited to the remedies specified in the third-party services provider’s standard service agreement.
    4. Suspension of Services or Access. We may suspend performance of our Services and/or suspend or deny access to or use of all or any part of the Zoomph Materials to you, your Affiliates or one or more of your Authorized Users, without any liability to you or others, if (i) we’re required to do so by law or court order; or (ii) you have, your Affiliate has or your Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf) has (A) accessed or used our Services or the Zoomph Materials in violation of this Agreement, (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Services or the Zoomph Materials, or (C) otherwise failed to comply with this Agreement and have failed to cure such breach within fifteen (15) days after we provide written notice to you.  Unless we have exercised our right to terminate this Agreement pursuant to Section 9.c, we will promptly resume performance of our Services and restore access to the Zoomph Materials as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured.  Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 9.c or any other rights or remedies under this Agreement, at law or in equity.
  2. Support Services and Uptime.
    1. Support. During the Term we shall, as part of your Fees, provide e-mail support (“Support Services”) to you during the hours of 9:00 a.m. (Eastern Time) to 5:00 p.m. (Eastern Time), Monday through Friday, excluding federal holidays (“Regular Business Hours”).  You agree that any requests for Support Services by e- mail shall be submitted only when the Service does not execute or function in all material respects with its Documentation.  You acknowledge and agree that you shall be charged at Zoomph’s then-current hourly rate, billed in fifteen (15) minute increments, for any Support Services rendered (i) outside of Regular Business Hours or (ii) in connection with any reported support request that we reasonably determine is not attributable to a failure of the Service to operate in all material respects with its Documentation.
    2. Availability. We shall use commercially reasonable efforts to make the Software available 95% of the time, determined on a twenty-four (24) hours a day, seven (7) days a week basis, except for: (i) planned downtime (of which we shall give at least one week electronic notice and which we shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday, Eastern Standard Time), and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving its employees), Internet service provider failure or delay, Third-Party Materials, Third-Party Systems, or software or hardware, or denial of service attack.
    3. APIs. You understand, acknowledge and agree that, unless otherwise separately agreed by you and us in writing, if you have a technical or customer support services request relating to our API (where applicable), you may contact us with your request using the designated support email address we have provided to you, and upon receipt of your request we will use commercially reasonable efforts to respond within a period of time that is reasonable under the circumstances, during our normal business hours.  Additionally, if your Order states that we are granting access to our API to you, then we will provide reasonable support and troubleshooting services when you first onboard to using our API under this Agreement—up to two hours of such services at no additional charge to you, and otherwise as set forth in an Order executed by you and us.  We do not otherwise provide, and our API is not otherwise offered with, any technical support, customer support or implementation services.  Unless separately agreed by you and us in a separate written agreement, we do not offer any development or customization services associated with this Agreement, our API, Software, Services or Zoomph Materials.
  3. Implementation Services.
    1. Our Obligations. Provided that you, your Affiliates and your Authorized Users comply with this Agreement, and if your Order contemplates such services, we will perform the on-boarding, configuration, implementation or other consulting and professional services like the integrations with Third-Party Systems and API development (“Implementation Services”) that are mutually agreed upon by you and us and described in your Order.  Following our final completion of the Implementation Services we will notify you and provide you with a period of up to two weeks to test and verify the Implementation Services have been completed in all material respects in accordance with the written specifications or acceptance criteria expressly set forth by you and us in the Order.  If during this testing period you provide written notice to us that the Implementation Services have not been completed in the manner described in this Section, then we will promptly use commercially reasonable efforts to correct the non-conformities identified in your notice, and agree we will repeat this process until the Implementation Services have been completed in the manner described in this Section; otherwise, the Implementation Services will be deemed to be accepted at the conclusion of this testing period.  You will provide reasonable assistance and information to us to assist us in resolving any identified non-conformities.  You will not unreasonably withhold, condition or delay acceptance of the Implementation Services. 
    2. Integrations with Third-Party Systems. To the extent set forth in your Order as part of the Implementation Services, we may enable integrations between the Software and your own or certain third-party software or systems that you wish to use in conjunction with the Software (collectively, “Third-Party Systems”) to enable the communication of data back and forth between the Software and such Third-Party Systems.  In each case we will enable such integrations with Third-Party Systems solely by utilizing our APIs or the application programming interfaces or other similar connectors that the owner/operator of the Third-Party System makes available for this purpose and solely to the extent you approve such integrations in advance in writing.  As between you and us, we will be solely responsible for identifying (and we will notify you in writing of) the Third-Party Systems required to enable such integrations, and you will be solely responsible for obtaining (at your sole cost and expense) the appropriate licenses to and accounts on the Third-Party Systems that are necessary to enable such integrations using such application programming interfaces or other connectors.  As between you and us, you will be responsible for verifying whether the establishment and on-going operation of any integrations between the Software and the Third-Party Systems as contemplated by this Agreement and your Order are and will be in compliance with the terms and conditions of the applicable license agreements for the Third-Party Systems, and we will be responsible for enabling the integrations as contemplated by this Agreement in accordance with the applicable license agreements for the Third-Party Systems that you make available to us and/or any sublicense you grant to us with respect to any Third-Party Systems (as applicable).  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ANY SUCH INTEGRATIONS ARE PROVIDED TO YOU BY US “AS IS,” “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.  We do not make any, and we hereby disclaim any and all, representations or warranties with respect to the Third-Party Systems, including (but not limited to) any representations or warranties as to the quality, accuracy, availability, operation or performance of the Third-Party Systems or as to the capabilities, features or functionality, suitability or appropriateness of such Third-Party Systems for use in your business or for use in connection with the Software, and you acknowledge and agree that we will not be liable to you, your Affiliates, your Authorized Users or any other person or entity for losses, damages, costs or expenses of any kind or nature to the extent resulting from any failure, interruption, delay, error, breach (including breach of security) or other problem of or caused by any Third-Party Systems.
    3. Your Responsibilities. In connection with our performance of the Implementation Services, you will: (i) reasonably cooperate with us in all matters relating to the performance of the Implementation Services; (ii) in a timely manner, provide all of Your Data reasonably necessary for us to complete such Services; (iii) respond promptly to our requests to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for us to perform such Services in accordance with the Order; and (iv) perform those additional tasks and assume those additional responsibilities that are assigned to you in the specified in the Order.  You accept that our performance is conditioned and dependent on your timely and effective satisfaction of the foregoing responsibilities.
  4. Confidentiality.
    1. General. In connection with receiving or providing the Zoomph Materials and Services during the Term, each party (each, a “Discloser”) may disclose to the other party (the “Recipient”) the Discloser’s proprietary or confidential information (collectively, “Confidential Information”).  During the Term and thereafter the Recipient will not without the Discloser’s written consent disclose Discloser’s Confidential Information to any third party (other than as otherwise permitted by this Agreement) nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement.  All non-public information related to the Zoomph Materials and the features, functionality and performance thereof are all our Confidential Information; Your Data is your Confidential Information; and the terms of this Agreement and each Order are the Confidential Information of both of us.
    2. Exceptions. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act or omission by the Recipient or its employees or agents, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser.  Additionally, Recipient may disclose Discloser’s Confidential Information to the extent it is legally compelled to do so pursuant to applicable law or the valid order of a court or governmental agency, provided that Recipient must first give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.
  5. Privacy Policy. Our processing of your and your Authorized User’s personal information and personally identifiable information will be pursuant to the Zoomph Privacy Policy available at https://zoomph.com/privacy-policy/ which is incorporated herein.  Your acceptance of the terms of this Agreement and continued use and access to the Software and Services constitute your and your Authorized Users’ acceptance of the Zoomph Privacy Policy.
  6. Fees and Payment.
    1. Fees. You will pay to us the fees and charges described in your Order (the “Fees”) in accordance with the Order and this Section 7.  In addition, unless otherwise specified in your Order, in each renewal term under a particular Order all Fees may, in our discretion, be increased for the renewal term by up to the greater of ten percent (10%) above the Fees prevailing in the immediately prior initial term or renewal term of the Order (in addition to any increases in pricing corresponding to any changes in usage or other pricing parameters) or the change in CPI that occurred over the immediately prior initial term or renewal term of the Order (where “CPI” is the U.S. Consumer Price Index for Urban Consumers, All U.S. Cities Average, published by the Bureau of Labor Statistics of the Department of Labor), without additional notice to you.  All purchases are final, all payment obligations are non-cancelable and (except as otherwise expressly provided in this Agreement or in your Order) all Fees once paid are non-refundable.
    2. Taxes. Our Fees do not include taxes and similar assessments.  We will pass along to you the cost of any sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income.  If any such amounts are owed to a governmental authority, we will calculate the amount of the obligation and include this on your bill or invoice, and we will remit those amounts to the applicable authority.  If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.
    3. Payment. You will make all payments in U.S. dollars.  Invoiced amounts are due thirty (30) days from the invoice date.  You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information.
    4. Late Payment. If you fail to make any payment when due then, in addition to all other remedies that may be available, we may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly, or, if lower, the highest rate permitted under applicable law. 
  7. Ownership and Intellectual Property Rights.
    1. Zoomph Materials. You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to the Zoomph Materials (for the avoidance of doubt excluding any of Your Data), our Confidential Information, Derived Data, Reports, Software, Services, APIs, including all associated features, functionality, software, content, insights, analytics, reports, data, datasets, materials and services made available thereon by us, including the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing, including all new versions, Updates, configurations, revisions, derivative works, improvements and modifications of the foregoing, and all related intellectual property rights (collectively, the “Zoomph IP”).  To the extent that, as a matter of law, you, your Affiliates or your Authorized Users are deemed to have any proprietary or ownership rights to or interest in any Zoomph IP based upon ideas, suggestions, specifications or joint contributions submitted to us, you hereby irrevocably assign (and you will cause your Affiliates and Authorized Users to irrevocably assign) to us all such rights and interests, together with all intellectual property rights therein.  Upon our reasonable written request and at our sole cost and expense, you will (or you will cause your Affiliates and Authorized Users to) take such further actions, including execution and delivery of instruments of conveyance, necessary to perfect the assignment of intellectual property rights in the United States and foreign countries, as may be necessary to give full and proper effect to such assignment.  We are not granting you any right, license or authorization with respect to the Zoomph IP except as we’ve specifically provided in Section 1 above.  We and the respective rights holders in any Third-Party Materials reserve all other rights in and to the Zoomph IP.
    2. Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in this Section 8.b and Section 8.c below.  You grant to us and our subcontractors all such rights and permissions in or relating to Your Data to: (i) perform the Services, generate and use Reports and provide the Software for you during the Term; and (ii) enforce this Agreement and exercise our rights and perform our obligations under this Agreement. 
    3. Derived Data. Our Software and Services use Derived Data (generated from Your Data as well as from data of other customers, Zoomph Materials, and Third-Party Materials) in one or more processing environments, to provide you and other customers with assessments, predictions, forecasts, observations and recommendations, for the benefit of you and other customers, including to (i) identify, monitor, analyze, classify and predict trends and performance, (ii) create insights and develop models to detect and predict insights and patterns, and (iii) improve the functionality of, and develop, our products, services and models and enhance their security; provided that in all of the foregoing cases we do so in a way that does not identify (and is not reasonably capable of identifying) you or any particular individual or entity.  You grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary to create Derived Data and use the resulting Derived Data for the above-described purposes.  Derived Data is not and will not be deemed to be Your Data under this Agreement.  We agree that we will not make any attempt to (and we will not permit our subcontractors to) re-identify any Derived Data, link it with any particular identified or identifiable individual or entity or maintain it in any manner that would be considered your or your Authorized Users’ Personal Information.
    4. Usage Data. We may collect diagnostic, metadata, telemetry, technical, usage, performance, and other statistical information regarding your, your Affiliates’ and your Authorized Users’ use of and the performance of the Software and Services (“Usage Data”), such as data on what features and functions are being used by its users and to what extent, and information about users’ computers, systems and software used to access the Software.  We may use Usage Data for monitoring, enhancing and improving the Software.  Usage Data does not and will not consist of or contain any Personal Information.  Usage Data is not and will not be deemed to be Your Data under this Agreement.
    5. Publicity Rights. During the Term, you agree that we may, without separate written consent from you, include your name, trademarks and logos on our website and in other sales and marketing materials in order to factually identify you as a current customer.
    6. Third-Party Materials. Notwithstanding any contrary term in this Agreement, the Software or Services may contain, be integrated with, or be provided with other software, programs, content or materials owned by third parties (“Third-Party Materials”), each of which has its own usage, copyright and applicable license terms and conditions.  The provision of the Third-Party Materials as part of or in connection with our Services or Software shall be subject to such third-party terms and conditions.
  8. Term and Termination.
    1. Term; Renewal. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect for a period of one (1) year from the Effective Date (the “Initial Term”).  The term of this Agreement will then automatically renew for additional terms of one (1) year each, unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).  Orders may have their own term and termination provisions set forth therein and any different terms in the Order shall take precedence.  Termination of one Order does not terminate another Order or this Agreement without express termination of this Agreement and an applicable Order.
    2. Termination. In addition to any other termination rights described in this Agreement and in an Order: (i) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement and either (A) such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach or (B) such breach is the second (or higher ordinal) breach of the limitations and restrictions in Section 1.d; and (ii) either party may terminate an affected Order (without terminating this Agreement in its entirety), effective on written notice to the other party, if the other party materially breaches an obligation specific to the affected Order and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
    3. Effect of Termination. The exercise of any right of termination under this Agreement will not affect any rights of either party (including rights to payment) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled.  If this Agreement is terminated or expires, then: (i) all rights, licenses and authorizations granted by one party to the other will immediately terminate, (ii) we may disable your, your Affiliates’ and your Authorized Users’ access to the Zoomph Materials, and (iii) we each will cease all use of the other party’s Confidential Information and at such other party’s request promptly destroy or return all of the other party’s Confidential Information within fourteen (14) days of such termination or expiration.  We have no obligation to store or deliver copies of Your Data after termination or expiration of the Agreement.
    4. Surviving Terms. Sections 5 (Confidentiality), 6 (Privacy Policy), 8 (Intellectual Property Rights), 9.c (Effect of Termination), 11 (Indemnification), 12 (Limitations of Liability), 14 (Miscellaneous), 15 (Definitions) and this Section 9.d will survive any expiration or termination of this Agreement.
  9. Representations and Warranties.
    1. By You Regarding Your Data. You represent and warrant that: (i) your, your Affiliates’ and your Authorized Users’ collection and use of all of Your Data (including your choice to upload and process Your Data to and through the Software as contemplated in this Agreement) and your Confidential Information is consistent with your own privacy policy and your license agreements and other agreements with third parties; (ii) you either own, or have all rights, permissions and consents that are necessary to store, use and process, and to permit us, our subcontractors and the Software to store, use and otherwise process as contemplated in this Agreement, all of Your Data and your Confidential Information; (iii) our and our subcontractors’ access to and storage, use and other processing of Your Data and your Confidential Information (including all Personal Information included in Your Data and your Confidential Information) as contemplated by this Agreement does not and will not violate any applicable law, rule or regulation or infringe, misappropriate or otherwise violate any intellectual property right, privacy right or other right of any third party.  You will defend us from and against any Claims brought by a third party, and you will indemnify and hold us harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you, your Affiliate, your Authorized Users or any other employee, contractor or agent under your control or direction or acting on your behalf have breached any representation or warranty in this Section 10.a.
    2. By Us Regarding Our Services. We warrant that we will perform all Services in a professional and workmanlike manner, using adequate resources and appropriately qualified personnel, and consistent with generally accepted standards of quality in our industry.  If we breach this warranty, we will promptly re-perform the non-conforming Services at no additional cost to you.  THE PROMPT RE-PERFORMANCE OF SERVICES SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY, AND ZOOMPH’S ONLY AND ENTIRE OBLIGATION AND LIABILITY, FOR ANY BREACH OF THE WARRANTY IN THIS SECTION b. The warranty in this Section does not apply to any non-conformance resulting from: (x) use of the Software in a manner inconsistent with this Agreement or its Documentation, (y) the operation of or access to your, your Affiliate’s or a third party’s system or network, or (z) Your Data or any Third-Party Materials or Third-Party Systems.
    3. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN SECTION 10.b, ALL SERVICES, SOFTWARE, AVAILABLE CONTENT, REPORTS, AND THE ZOOMPH MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE REPORTS, AVAILABLE CONTENT, OR OTHER ZOOMPH MATERIALS WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE REPORTS, AVAILABLE CONTENT OR OTHER ZOOMPH MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
    4. Disclaimer of Information. As a user of the Software, you will be provided with access to certain data and other content and materials we make available through the Software, including Reports (the “Available Content”).  The data and information presented in the Available Content is based upon and derived from sources and methods we believe to be reliable, but is not guaranteed and does not purport to be complete or error-free.  In many cases, the Available Content is also based upon and derived from Your Data that you upload to and submit to the Software.  We do not (and cannot) control, are not responsible for, do not undertake to independently review, verify or vet, and make no warranties or guarantees regarding the quality, timeliness, suitability, usefulness, validity, reliability, sufficiency, legality, completeness, accuracy, integrity or fitness for purpose of Your Data.  As a result, we do not warrant or guarantee the quality, timeliness, suitability, usefulness, validity, reliability, sufficiency, legality, completeness, accuracy, integrity or fitness for purpose of the Available Content or information contained therein, and the Available Content is made available to you on an “as is,” “as available” and “with all faults” basis.  The availability of any Available Content on or through the Software does not imply our endorsement of such Available Content for your unique needs or the unique needs of any other person or entity.  You should independently evaluate the accuracy, quality and suitability of any Available Content as appropriate for your use case, including by using human review of the Available Content.  The Available Content and the data and information contained therein is made available solely for informational purposes, to help inform and support the ultimate decision-making processes of one or more human decision-makers, knowledge workers, or the like.  It is not intended to be, and must not be construed, used or relied upon as, financial, accounting, tax, legal, underwriting, investment, business or other advice.  You understand, acknowledge and agree that: (i) you will bear all risks associated with the use of the Available Content or any information or data contained therein; (ii) any reliance you, your Affiliate, your Authorized User or any other person or entity places on the Available Content is entirely at your, your Affiliate’s, your Authorized User’s or such other person’s or entity’s own risk; (iii) we will not be responsible or liable to you, your Affiliate, your Authorized User or any other person or entity in any way for any error or inaccuracy in, or any reliance placed on or use made of, such Available Content.  You will defend us from and against any Claims brought by a third party, and you will indemnify and hold us harmless from any Losses associated with such third party Claims, in each case to the extent the same arise from your, your Affiliate’s, your Authorized User’s or any other person’s or entity’s use of the Available Content (except to the extent such Claims pertain to matters for which we are obligated to indemnify you under Section 11.b below).      
  10. Indemnification.
    1. By You. You will defend us from and against any Claims brought by a third party, and will indemnify and hold us harmless from any Losses associated with such third-party Claims, in each case to the extent the same are based on: (i) any use of the Software and Services by you or any Authorized User that is inconsistent with, or in violation of, the use rights or use limitations and restrictions set forth in this Agreement or any Order (ii) your fraud, gross negligence or willful misconduct; (iii) your breach of your confidentiality obligations in Section 5 above; or (iv) personal injury (including death) or damage to tangible personal property caused by your negligent or more culpable conduct.
    2. By Us. We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third-party Claims, in each case to the extent the same are based on: (i) allegations that the Software or your use thereof (excluding Your Data or Confidential Information) infringe any patent, copyright or trademark of such third party, or misappropriate the trade secret of such third party (each, an “Infringement Claim”); (ii) our fraud, gross negligence or willful misconduct; (iii) our breach of our confidentiality obligations in Section 5 above; or (iv) personal injury (including death) or damage to tangible personal property caused by our negligent or more culpable conduct.
    3. Exclusions from Infringement Claims. Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Software in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (ii) modifications or configurations made to the Software by anyone other than us or a party acting under our direction without our prior written consent; (iii) Third-Party Materials; (iv) integrations with any Third-Party Systems made by us in accordance with your instructions and the applicable license agreements for the Third-Party Systems that you make available to us and/or any sublicense you grant to us with respect to any third-party API; or (v) any action taken by you, your Affiliate or any Authorized User relating to use of the Software that violates this Agreement.
    4. Mitigation for Infringement Claims. If the Software is, or in our opinion is likely to be, the subject of an Infringement Claim, or if your, your Affiliate’s or any Authorized User’s use of the Software is enjoined or threatened to be enjoined, we will, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the allegedly infringing Software as contemplated by this Agreement, (ii) modify or replace the allegedly infringing Software to make such Software (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice and our sole liability will be to promptly provide a refund of Fees.
    5. Indemnification Procedures. If a party reasonably believes it is entitled to indemnification under this Agreement, such party (the “Indemnified Party”) promptly must give the other party (the “Indemnifying Party”) written notice of the claim of indemnification, provided that an Indemnified Party’s failure to notify the Indemnifying Party will not diminish the Indemnifying Party’s indemnification obligations except to the extent the Indemnifying Party is materially prejudiced as a result of such failure.  Any such notice shall set forth in reasonable detail the facts, circumstances and basis of the applicable Claim.  Upon receipt of notice of the assertion of a Claim, the Indemnifying Party will have the right to control the defense or settlement of the matter at its own expense and with counsel of its choice, provided that the Indemnifying Party shall not enter into any settlement of the relevant Claim without written consent of the Indemnified Party (not to be unreasonably withheld).  The Indemnified Party must cooperate reasonably with the Indemnifying Party, at the Indemnifying Party’s expense, to facilitate the defense, compromise or settlement of any Claims.  The Indemnified Party may employ separate counsel and participate in any indemnified Claim, but the fees and expenses of such counsel will be at the expense of the Indemnified Party.
  11. Limitation of Liability.
    1. Damages Cap. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND OR NATURE (INCLUDING DIRECT DAMAGES) IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS FIRST GIVING RISE TO THE CLAIM OR CLAIMS (THE “DAMAGES CAP”).
    2. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.  THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    3. Exclusions from Damages Cap. The exclusions and limitations of liability in Section 12.a will not apply to (i) a party’s indemnification obligations under this Agreement; (ii) a party’s fraud, gross negligence or willful misconduct; (iii) a party’s breach of its confidentiality obligations under Section 5; (iv) a party’s (or your Affiliate’s) infringement or misappropriation of the other party’s intellectual property rights; provided that in any event our maximum liability for damages in connection with the foregoing will not exceed three times (3x) the Damages Cap.
  12. Insurance. During the Term we will maintain, at our expense, the following insurance coverages with respect to all activities related to our provision of the Zoomph Materials and performance of the Services to be provided under this Agreement: (i) commercial general liability insurance (including products and completed operations, premises/operations, personal injury and advertising injury, and bodily injury) with per occurrence and aggregate limits of not less than $2,000,000 and $4,000,000, respectively; (ii) such workers’ compensation and other employers’ liability insurance as may be required by applicable law; (iii) cyber / network security liability insurance with per occurrence and aggregate limits of not less than $2,000,000 and $2,000,000, respectively; and (iv) professional liability (errors & omissions) in the amount of $1,000,000 per occurrence.  Upon reasonable written request, we will promptly furnish a certificate evidencing such coverages.  Liability of a party is not limited in any way by the amount of insurance required to be carrier or actually carried by that party.
  13. Miscellaneous.
    1. Entire Agreement. This Agreement (including, for the avoidance of doubt, its Exhibits and any other referenced addenda or attachments) and each Order together constitute the entire agreement between the parties on the subject matter hereof, and supersede all prior negotiations, understandings or agreements (oral or written) and all past dealing or industry custom.
    2. Amendment, Severability and Waiver. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought.  Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.  If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    3. Governing Law and Venue. Except as expressly agreed by you and us, this Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to any conflicts of law provisions.  The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in the State of Delaware, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.
    4. Notices. All notices under this Agreement must be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in your Order.
    5. Assignment. Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety, without notice to or consent from the other party, to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise.  This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
    6. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    7. Relationship of the Parties. The relationship between the parties is that of independent contracting parties.  Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
    8. Force Majeure. Neither party will be liable for any delays or non-performance of its obligations arising out of actions or decrees of governmental authorities (including enactment or adoption of law or regulation) following the first date you accept this Agreement, criminal acts of third parties, telecommunication failures not caused by a party, problems with equipment or software provided by other parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire, or other similar causes not within such party’s reasonable control (each, a “Force Majeure Event”).  In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.  Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
    9. Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 1.e (Limitations and Restrictions) or Section 5 (Confidentiality) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    10. Conflict in Terms. If there is a conflict between this Agreement and your Order, the terms of the Order shall govern the provision of the Zoomph Materials or the Services involved; provided, however, that nothing in your Order may modify or supersede anything in Sections 1.e (Limitations and Restrictions), 8 (Ownership and Intellectual Property Rights), 10 (Representations and Warranties), 11 (Indemnification), 12 (Limitation of Liability) or 14 (Miscellaneous) of this Agreement unless an express cross-reference is made to the relevant provision of this Agreement in the Order and the parties have expressly agreed in the Order to modify or alter the relevant provision of this Agreement.
    11. Counterparts. This Agreement and each Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.  A signed copy of this Agreement or any Order delivered by facsimile, e-mail or other electronic means (including, e.g., DocuSign or another electronic signature service) is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
  14. Other Definitions. Capitalized and other terms that are used in this Agreement have the meanings described below:

“Affiliate” means another entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with you and is expressly identified as a covered “Affiliate” in an Order.  The term “control” (including the terms “controlled by” and “under common control with”) means the power to direct or cause the direction of the management and policies of an entity through the ownership of more than fifty percent (50%) of the voting securities of the entity.

“Authorized User” means your employees or employees of your Affiliates who have registered to use the Software by and through your account and to whom we have provided access codes to log in to the Software.  Unless we have provided prior written consent, “Authorized Users” shall not include any third parties, including but not limited to third-party independent contractors, consultants, agents, subcontractors, vendors or service providers.

“Claim” means any investigation by a governmental body, claim, suit, action or proceeding.

“Derived Data” is data, metadata or other information created by us or our subcontractors that is, in whole or in part, based upon, derived or generated from Your Data and that is aggregated, tokenized and/or anonymized in such a manner that it does not identify or link to you or a particular individual or entity.

“Documentation” means the then-current online, electronic and written user documentation and guides we make available to you, your Affiliates and your Authorized Users which describe the functionality, components, features or requirements of the Software, as we may update from time to time in our discretion.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.

“Loss” means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.

“Order” means the Order executed by you and us that references this Agreement, and which forms a part of and is incorporated into this Agreement by reference for all purposes.

“Permitted Use” means for your own (or your Affiliate’s) internal business purposes in the ordinary course of such business (and not on behalf of, for the benefit of or as a service to any third party).

“Your Data” means your proprietary or confidential information, data, records or other materials (for example, your BYOM (bring your own media) materials) that are either (i) uploaded or submitted directly by you, your Affiliate or an Authorized User by, in or through the Software for the purposes of being stored or otherwise processed for your Permitted Use of the Software, or (ii) uploaded by you, your Affiliate or an Authorized User to a File Transfer Protocol (FTP) site provided to you by us for purposes of facilitating our provision of Support Services, Implementation Services or other Services to you.  For the avoidance of doubt, Your Data does not include any Derived Data or Usage Data or Third-Party Materials or any Zoomph Materials.