Zoku Software as a Service Agreement

Last Modified: November 1, 2023

This Zoku Software as a Service Agreement is entered into by and between Zoku Americas Inc.. (“Zoku”), a company incorporated in Delaware and having its address at 11810 Grand Park Ave Suite 500, North Bethesda, MD 20852, and the Customer as defined below. Zoku and Customer may be referred to herein collectively as the “Parties” and individually as a “Party.” In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Definitions

Capitalized terms hereunder have the meanings set forth or referred to in this Section, or in the Section in which they first appear in this Agreement.

“Agreement” means this Zoku Software as a Service Agreement as posted at www.zokusuite.com/saasagreement together with any relevant Order and other documents or terms incorporated herein by reference.

“End Users” means Customer’s employees, consultants, contractors, agents, or other individual users who are authorized by Customer to access and use Services on Customer’s behalf.

“Customer” / “You” means a Party to this Agreement as identified in the relevant Order that accesses or uses Services pursuant to this Agreement.

“Customer Data” means, other than Statistical Data, any information, data, and other content, in any form or medium, including Personal Information, that is submitted, posted, transmitted or otherwise processed by or on behalf of Customer through or by virtue of Services.

“Documentation” means user manuals, handbooks, guides and other information relating to Services provided by Zoku to Customer either electronically or at the relevant Internet webpage available for access.

“Integrated Product” means a product or service of Customer that incorporates or constitutes, entirely or in part, of Services and that is rendered or distributed to any third party by Customer under its own brand or otherwise.

“Order” means any order, statement of work, proposal, specification, request, or another writing, whether executed on paper or electronically, including by exchange of electronic communications, that contain necessary identities, fees, quantities, dates, and other specific terms and adopts or incorporates by reference this Agreement. For avoidance of doubt, any actual accept or use of Services by Customer subject to actual or implied notice of this Agreement constitutes an Order.

“Personal Information” means personal data, personal information, personally identifiable information (PII), or any other equivalent term that is defined in the Privacy Policy.

“Privacy Policy” means the Zoku Privacy Policy available at www.zokusuite.com/privacy-policy.

“Services” means Zoku’s services comprising of, or relating to, provision of access to and use of Zoku’s proprietary software applications and platforms, including any programming and user interfaces therefor.

“Statistical Data” means data and information related to Customer’s access to and use of Services that is collected and used by Zoku in aggregate and/or anonymized form, including to compile statistical and performance information related to the provision and operation of Services.

“Third-Party Services” means any third-party’s products or services provided together with or incorporated into Services.

“Zoku Data Processing Agreement” means the Zoku Data Processing Agreement available at www.zokusuite.com/dpa.

“Zoku IP” means any and all intellectual property and similar rights and interests in and to Services and Documentation. For avoidance of doubt, Zoku IP includes Statistical Data and any information, data, or other content derived from Zoku’s monitoring of Customer’s access to and use of Services but does not include Customer Data.

“Zoku Maintenance and Support Agreement” means the Zoku Maintenance and Support Agreement available at www.zokusuite.com/masagreement.

Applicability and Acceptance

This Agreement governs the provision by Zoku to Customer of access to and use of Services including any content, functionality, and features offered on or through the Services. This Agreement is accepted by virtue of an Order, including via a click-through acceptance. When executing the Order, please read this Agreement carefully before You start using Services. By using Services, You accept and agree to be bound and abide by this Agreement, the Zoku Data Processing Agreement and Privacy Policy which are incorporated herein by reference together with any other documentation referenced in this Agreement. If You do not agree to the Agreement, Zoku Data Processing Agreement or Privacy Policy, You must not access or use Services or permit End Users access and use Services.

Changes and Modifications

We may revise and update this Agreement from time to time in our sole discretion. The Customer will ve notified at least 5 (five) days before the Agreement is revised or updated at any time. All changes are effective immediately when we post them on our website as the updated Agreement, and apply to all your access to and use of the Services thereafter. However, any changes provisions set out in Sections 4.1 through 4.7, 5.1 through 5.3, as well as 16.8 and 16.9 below will not apply to the Parties until after they have actual notice of the change and do not disagree with the change during the period stipulated in the notice. Your continued use of the Services following the posting of the revised Agreement means that You accept and agree to the changes. You are expected to check posted Agreement from time to time so You are aware of any changes as they are binding on You.

Access to Services

4.1 Access. Subject to and conditioned on Customer’s payment of applicable fees and compliance with other terms and conditions of this Agreement and any other contract between Zoku and Customer, Zoku hereby grants to Customer a non-exclusive, non-transferable, and non-sublicensable right to access and use Services, solely for internal business use by Customer and its End Users. Zoku shall provide to Customer all necessary passwords and network links or connections to allow Customer to access the Services.

4.2 End Users. Where applicable, a total number of End Users shall not exceed the number set forth in the relevant Order, except as expressly agreed upon in writing by the Parties and subject to any appropriate adjustment of applicable fees. At all times, Customer shall be responsible for any access to and use of Services by its End Users. Any act or omission by Customer’s End Users that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.

4.3 Documentation. Subject to compliance with other terms and conditions of this Agreement, Zoku hereby grants to Customer a non-exclusive, non-sublicensable, and non-transferable license to use Documentation solely for Customer’s internal business purposes in connection with its access to and use of Services.

4.4 Integrated Product Use. Whenever Customer provides access to and use of Services as part of an Integrated Product to third party users and Customer has procured a relevant integration license from Zoku, Customer shall remain the primary and sole licensee of Zoku with respect to the access to and use of such Services by the third-party users of the Integrated Product and stay fully liable, whether in contract, tort, or by other legal theory, for their access and use as if they were Customer’s own End Users, unless otherwise is agreed in writing.

4.5 Use Restrictions. Customer shall not access and use Services for any purposes beyond the scope of the access and use granted in this Agreement. Customer shall abide, and secure that its End Users abide, with the Acceptable Use Policy set out below in Annex I to this Agreement. In addition, Customer shall not at any time, directly or indirectly, and shall not permit its End Users to:

(i) copy, modify, or create derivative works of Services or Documentation, in whole or in part;

(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available Services or Documentation;

(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of Services, in whole or in part;

(iv) remove any proprietary notices from the Services or Documentation;

(v) use Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

The obligations set forth in this Section 4.5 are in addition to, but not in lieu of, any similar lesser obligations in another contract between the Parties.

4.6 Reservation of Rights. Zoku reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to Zoku IP. The reservation set forth in this Section 4.6 is in addition to, but not in lieu of, any similar lesser reservation in another contract between the Parties.

4.7 Third-Party Services. Zoku reserves the right to incorporate, integrate or otherwise use, whether or not on a white label basis, Third-Party Services in its Services. In case such Third-Party Services are subject to their own terms and conditions which are to be accepted by Customer independently of this Agreement, Zoku will notify Customer about these fact and necessity as soon as it is practicable but anyway before the conclusion of this Agreement.

Customer Data and Data Privacy Compliance

5.1 Customer Data. Customer hereby grants to Zoku a non-exclusive, royalty-free, worldwide license to reproduce and otherwise use its Customer Data as may be necessary for Zoku to provide Services to Customer, at all times subject to the limitations set out in the Zoku Data Processing Agreement and Privacy Policy as well as applicable data protection laws. Customer acknowledges and agrees that it shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of its Customer Data.

5.2 Statistical Data. Notwithstanding anything to the contrary herein, Zoku may monitor use of Services and collect and compile Statistical Data. As between Zoku and Customer, all right, title, and interest in Statistical Data, and all intellectual property rights therein, belong to and are retained solely by Zoku. Customer acknowledges and agrees that Zoku may compile Statistical Data based on Customer Data input into Services. Customer agrees that Zoku may (i) make Statistical Data publicly available in compliance with applicable law, and (ii) use Statistical Data to the extent and in the manner permitted under applicable law; provided that such Statistical Data do not identify Customer or End User or their Confidential Information. Whenever Statistical Data includes Personal Information, any processing of the latter shall be conducted by Zoku in accordance with the Zoku Data Processing Agreement and Privacy Policy.

5.3 Data Privacy Compliance. Each Party is responsible for compliance with its respective obligations under applicable data protection laws. Each Party undertakes to assist the other in its data privacy compliance in accordance with the Zoku Data Processing Agreement. To the extent that as a result of such assistance, including compliance with data processing instructions from Customer, Zoku will incur additional charges or fees not covered by the fees for the Services to be payable by Customer, such charges and fees shall be promptly reimbursed by Customer.

Suspension of Access and Use

6.1 Notwithstanding anything to the contrary herein, Zoku may temporarily suspend Customer’s or its End User(s)’ access to and use of any portion of or all of the Services (“Suspension of Access”) if:

(a) Zoku reasonably determines that (i) there is a threat to or attack on Zoku IP; (ii) access to or use of the Services disrupts or poses a security risk to Zoku or to any of its customer, supplier, business partner, vendor or another person; (iii) the Services are being used for fraudulent or illegal activities; (iv) provision of Services is prohibited by applicable law; or

(b) there is a violation, or reasonable suspicion of a violation, by Customer or its End User(s) of the Acceptable Use Policy set out below in Annex I to this Agreement; or

(c) any Zoku’s vendor has suspended or terminated Zoku’s access to or use of Third-Party Services or other services necessary to enable Customer to access and use the Services; or

(d) Customer fails to pay any amounts when due and such failure continues for Ten (10) days following the date when such amounts become due.

6.2 Zoku shall use commercially reasonable efforts to provide to Customer notice of any Suspension of Access and following updates regarding resumption of access to Services, as well as to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Suspension of Access is cured. Zoku will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or its End User(s) may incur as a result of a Suspension of Access.

Customer Responsibilities

7.1 Customer is responsible and liable for all uses of Services and Documentation resulting from access to or use of Services, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement and whether made by Customer or its End Users.

7.2 Without limiting the generality of the foregoing, Customer is and will be responsible for operation, maintenance, and management of, and all access to and use of, any systems under its control, including information technology infrastructure, computers, software, hardware, databases, electronic systems and networks, whether operated directly or through the use of third-party services.

7.3 Customer shall provide all cooperation and assistance as Zoku may reasonably request to enable Zoku to exercise its rights and perform its obligations hereunder. This duty to cooperate is in addition to, but not in lieu of, any similar duty to cooperate that may be set out in another contract between the Parties.

7.4 Zoku shall not be responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.

Fees

In consideration for any access to and use of Services, Customer shall pay to Zoku the fees as agreed in the relevant Order and/or pursuant to another contract between the Parties referencing this Agreement.

Service Levels, Maintenance and Support

9.1 Zoku will use commercially reasonable efforts to make Services available for Customer and its End Users for at least ninety-nine percent (99.9%) of the time as measured over the course of each calendar month (each such calendar month, a “Service Period”). Any material failure to meet the availability requirement set out herein will be deemed a Service Level Failure, except for unavailability resulting from any of the following:

(a) access to or use of Services by Customer or its End User(s) that does not strictly comply with this Agreement or applicable Documentation;

(b) any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement;

(d) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Zoku pursuant to this Agreement;

(e) Scheduled Downtime in accordance with Section 8.3;

(f) Suspension of Access in accordance with Section 6;

(g) Force Majeure in accordance with Section 16.4;

(h) termination of this Agreement.

9.2 In the event of a Service Level Failure, Zoku shall issue a credit to Customer in the amount of 0.3% percent of the monthly fees for the relevant Services for each Service Level Failure, excluding any sum payable for other Services, due for the relevant Service Period, subject to the following:

(a) Zoku has no obligation to issue any service credit unless Customer (i) reports the service failure within reasonable time after becoming aware of it and (ii) requests such service credit in writing; and

(b) in no event will a service level credit for any service period exceed ten (10%) percent of the fees that would be payable by Customer for the Services in the Service Period. Any service credit will be issued in the calendar month following the Service Period in which the Service Level Failure occurred.

Customer acknowledges and agrees that this Section 9.2 sets forth Zoku’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.

9.3 Zoku will use commercially reasonable efforts to schedule downtime (“Scheduled Downtime”) subject to the following:

(a) Zoku gives Customer at least 24 hours prior notice of all instances of Scheduled Downtime.

9.4 Zoku shall provide to Customer maintenance and support services in accordance with the Zoku Maintenance and Support Agreement which is incorporated herein by reference and which application is limited to the provision of the maintenance and support services only.

9.5 Each Party shall maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party. Each Party shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. If either Party’s service manager ceases to be employed by such Party or such Party otherwise wishes to replace its service manager, such Party shall promptly designate a new service manager by written notice to the other Party.

Confidential Information

10.1 From time to time, either Party (“Disclosing Party”) may disclose or make available to the other Party (“Receiving Party”) non-public, proprietary, and confidential information, whether disclosed orally or disclosed or accessed, including through observation, in written, electronic or other form or media and whether or not marked, designated, or otherwise identified as “confidential,” that may be required for the performance of obligations under this Agreement (collectively, “Confidential Information”); provided, however, that Confidential Information does not include any information that:

(a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Agreement;

(b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;

(d) was or is independently developed by Receiving Party without using any Confidential Information.

9.2 The Receiving Party shall:

(a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information of similar nature, but in no event with less than a commercially reasonable degree of care;

(b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and

(c) not disclose any such Confidential Information to anyone, except for the Receiving Party’s Personnel or consultants who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section caused by the ones whom the Receiving Party entrusted Confidential Information of the Disclosing Party.

10.2 The Receiving Party’s obligations with respect to the Confidential Information shall continue for a period of thirty-six (36) months from the date of expiry or termination of this Agreement, unless a larger period is set out in another contract between the Parties regarding the same subject matter.

10.3 If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at its sole cost and expense, a protective order or another remedy.

10.4 On the expiration or earlier termination of this Agreement, the Receiving Party and its representatives shall promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.

Intellectual Property Ownership

11.1 Customer acknowledges and agrees that, as between Customer and Zoku, Zoku owns all rights, titles, and interests, including any and all intellectual property rights, in and to Zoku IP and Services, as well as that, with respect to Third-Party Services, the applicable third-party owns all rights, titles, and interests, including any and all intellectual property rights, in and to the Third-Party Services.

11.2 Customer acknowledges agrees that Services may contain open source components any use of which by Customer is governed by, and subject to, the terms and conditions of respective open source license(s) as publicly available on the Internet. Zoku shall notify Customer of any terms and conditions of such licenses that may limit any access to or use of Services.

11.3 If Customer or any of its employees, agents, consultants, or contractors sends or transmits communications or materials to Zoku suggesting or recommending changes to Services or Zoku IP, including without limitation, new features or functionality, as well as any other comments, questions, suggestions or the like (”Feedback”), Zoku is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Zoku on Customer’s behalf and on behalf of its employees, agents, consultants, or contractors, all rights, titles, and interests in and to Feedback, and Zoku is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in Feedback, for any purpose whatsoever, although Zoku is not required to use any Feedback.

Warranty and Disclaimer

12.1 Zoku warrants that during the Term, Zoku will perform (i) the Cloud Service using commercially reasonable care and skill in all material respects as described in the Zoku Written Materials, and (ii) any Professional Services and Support Services in a professional manner consistent with industry standards (the warranties described by the foregoing clauses (i) and (ii), collectively, the “Services Warranty”). If the Services provided to Customer were not performed as warranted, Customer must promptly provide Zoku with a written notice that describes the deficiency in the Services (including, as applicable, the service request number notifying Zoku of the deficiency in the Services). For Professional Services, Customer must notify Zoku of any warranty deficiencies within 60 days from performance of the deficient Professional Services.

12.2. ZOKU DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT ZOKU WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. ZOKU IS NOT RESPONSIBLE FOR ANY ISSUES RELATEDTO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER DATA OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES.

12.3. FOR ANY BREACH OF THE SERVICES WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND ZOKU’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF ZOKU CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE DEFICIENT SERVICES AND ZOKU WILL REFUND TO CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT CUSTOMER PRE-PAID TO ZOKU FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.

12.4 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

Indemnification

13.1 Zoku shall indemnify Customer from and against the damages, liabilities, costs and expenses awarded by the court or the settlement agreed (“Losses”) resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that Services or use thereof in accordance with this Agreement infringe or misappropriate such third party’s intellectual property rights, provided that Customer promptly notifies Zoku in writing of the claim, cooperates with Zoku, and allows Zoku sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Zoku, at Zoku’s sole discretion, to:

(a) modify or replace the Services, or component or part thereof, to make it non-infringing; or

(b) obtain the right for Customer to continue access and use the Services.

If Zoku determines that neither alternative is reasonably available, Zoku may terminate this Agreement, in its entirety or with respect to the affected component or part of the Services, effective immediately on written notice to Customer.

This Section will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Zoku or authorized by Zoku in writing; (ii) modifications to the Services not made or expressly authorized by Zoku; (iii) Customer Data; or (iv) Third-Party Services.

THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND ZOKU’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

13.2 Customer shall indemnify Zoku from and against any Losses resulting from any Third-Party Claim (including any administrative and similar remedies imposed by relevant data protection authorities) that Customer Data or any use thereof in accordance with this Agreement infringe or misappropriate such third party’s intellectual property or privacy (data protection) rights as well as from and against any Third-Party Claims based on Customer’s: (i) negligence or willful misconduct; (ii) use of Services in a manner not authorized by this Agreement; (iii) use of Services in combination with data, software, hardware, equipment or technology not provided by Zoku or expressly authorized by Zoku; or (iv) modifications to Services not made by Zoku; provided, that Customer may not settle such Third-Party Claim unless Zoku consents to such settlement, and further provided that Zoku will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ZOKU WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THIS LIMITATION OF LIABILITY IS IN ADDITION TO, BUT NOT IN LIEU OF, ANY SIMILAR LIMITATION SET OUT IN ANOTHER CONTRACT BETWEEN THE PARTIES.

Term and Termination

15.1 The Agreement shall remain in effect until all obligations of the Parties subject to all outstanding Orders have been fully performed or otherwise discharged or until terminated as provided hereunder.

15.2 Either Party may terminate this Agreement when and if the other Party:

(a) is in default and the default is not cured within Thirty (30) days after the defaulting Party’s receipt of written notice of such default;

(b) becomes insolvent, files a petition for bankruptcy or commences, or has commenced, any proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

15.3 In addition to the grounds set out in Section 15.2 above, Zoku may terminate this Agreement if:

(a) Customer fails to pay any amount due and such failure continues for thirty (30) days after Customer’s receipt of a written notice of nonpayment;

(b) the Zoku Master Services Agreement, or equivalent or similar contractual arrangement, between the Parties is earlier terminated pursuant to their own terms.

15.4 Effects of expiration or termination of the Agreement be as follows:

(a) All outstanding payments of one Party to the other Party become immediately due and payable.

(b) Each Party shall promptly (i) cease to do anything that can enlarge any damages, expenses or other obligations of the other Party; (ii) comply with Section 15.4 above.

(c) The expiration or termination of this Agreement will not affect or impair any rights or obligations that: (i) are to survive the expiration or earlier termination of this Agreement; and (ii) were incurred by the Parties prior to such expiration or termination.

(d) The Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable for any damage or loss, whether direct or indirect, including any loss of profits, incurred by the other Party solely by reason of the expiration or termination of this Agreement.

(e) upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of Services and, without limiting other Customer’s obligations, shall delete, destroy, or return all copies of Zoku IP, terminate access to Services, and certify in writing the compliance with the foregoing.

Miscellaneous

16.1 Relationship of Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall 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 shall have authority to contract for or bind the other Party in any manner whatsoever.

16.2 Marketing. Either Party may disclose the existence of this Agreement but not the specific terms of the relevant Order. Customer agrees that Zoku may refer to Customer in its public and marketing communications as a customer, and use Customer’s corporate name and/or logo in customer lists, including presentations and on its website. Subject to Customer’s preliminary consent, which consent shall not be unreasonably withheld, Zoku may create a video and print case study describing Zoku’s efforts in performance of this Agreement and featuring insights for the purpose of publishing the video on its website or as an article to industry publications, or as otherwise appropriate in the industry.

16.3 Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement in writing and addressed to the other Party at its address. Each Party shall deliver all notices by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Notwithstanding the foregoing, notice given by facsimile or e-mail (with confirmation of transmission) will satisfy the requirements of this Section. Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section.

16.4 Subcontractors. Each Party may perform their respective obligations hereunder through subcontractors, provided that (a) none of the rights hereunder are diminished or otherwise adversely affected as a result of use of subcontractors; and (b) each subcontractor undertakes obligations regarding the Confidential Information which are substantially the same as those undertaken by the Parties herein.

16.5 Force Majeure. In no event shall either party be liable to Customer or be deemed to have breached this Agreement for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Zoku’s reasonable control, including but not limited to acts of God, flood, epidemic and pandemic, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial or social disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

16.6 Waiver. No waiver by Zoku of any provisions of this Agreement is effective unless explicitly set forth in writing and signed by Zoku. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof.

16.7 Severability. If any term or provision of this Agreement is determined by a court of the competent jurisdiction as invalid, illegal or unenforceable, such term or provision will be severed and modified to the extent necessary to comply with the applicable law or policy, and such modified provision and the remainder of the Agreement will continue in full force and effect.

16.8 Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.

16.9 Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in competent courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each Party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement. The prevailing Party shall be entitled to reasonable attorney’s fees and costs of the litigation.

16.10 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without a prior written consent of Zoku. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Zoku may assign any of its rights or delegate any of its obligations to any affiliated party or to any person acquiring all or substantially all of Zoku’s assets.

16.11 Survival. Provisions of this Agreement, which by their nature should apply beyond the date of expiration or termination of this Agreement, will remain in force thereafter.

16.12 Writing Requirement. Whenever this Agreements requires a document be made in writing, the document delivered by facsimile, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivered of an original signed copy of the writing.

16.13 International Delivery of Goods. Th Parties hereby acknowledge and agree that, whenever any delivery of goods constitutes part of Services, the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

16.14 Counterparts. This Agreement 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.

Annex I

Acceptable Use Policy
(“AUP”)

You may access and use Services only for lawful purposes and in accordance with this AUP. Zoku will determine, in its sole discretion, whether your conduct is in compliance with this AUP. Zoku will have rights to inspect compliance with this AUP as set out in more detail in Section 5 below.
You agree not to access and use Services:

in any way that violates any applicable law or regulation;
for the purpose of exploiting, harming, or attempting to exploit or harm, minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
to send, knowingly receive, upload, download, use, or re-use any material which violates the rights of any individual or entity established in any jurisdiction;
to impersonate or attempt to impersonate Zoku or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing);
to engage in any other conduct that restricts or inhibits anyone’s access to or use of Service, or which, as determined by us, may harm Zoku or its vendors, suppliers, and customers or expose them to liability.

Additionally, you agree not to:

access and use Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services;
ue any robot, spider, or other automatic device, process, or means to access Services for any purpose, including monitoring or copying any Services traffic or resources available on the Services;
use any manual process to monitor or copy any Services traffic or resources available on the Services or for any other unauthorized purpose without our prior written consent;
use any device, software, or routine that interferes with the proper working of the Services;
introduce any viruses, trojan horses, worms, logic bombs, or other software or material which is malicious or technologically harmful;
attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of Services or any server, computer, database, or other resource or element connected to the Services;
violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of Services;
otherwise attempt to interfere with the proper rendition of Services.

You agree not to use Services to send, knowingly receive, upload, download, use, or re-use any material which:

contains any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
infringes any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person;
violates the legal rights (including the rights of publicity and privacy) of others or contains any material that could give rise to any civil or criminal liability under applicable laws or regulations;
is likely to deceive any person;
promotes any illegal activity, or advocates, promotes, or assists any unlawful act;
causes annoyance, inconvenience, or needless anxiety or is likely to upset, embarrass, alarm, or annoy any other person;
impersonates any person, or misrepresents your identity or affiliation with any person or organization;
gives the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Zoku will have the right to:

monitor your use of Services for any purpose in our sole discretion and as we see fit, at all times in compliance with our Privacy Policy and applicable data protection law;
take any action we deem necessary or appropriate in our sole discretion if we believe that Customer’s or End User’s conduct violates this AUP, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of the public, or could create liability for Zoku;
disclose identity or other information about the infringer to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of Services;
terminate or suspend access to and use of all or part of Services for any violation of this AUP and the Agreement.

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone who accesses or uses Services. YOU WAIVE AND HOLD HARMLESS ZOKU FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER ZOKU OR LAW ENFORCEMENT AUTHORITIES.

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