Terms of service

IMPORTANT: Please read this Terms of Service Agreement (“Agreement”) before clicking the “accept” button, and/or using the Zocks Communications, INC. (“Zocks”) software-as-a-service product that accompanies or is provided in connection with this Agreement.  By clicking the “Accept” button, and/or using the Services in any way, you and the entity that you represent (“Subscriber”) is unconditionally consenting to be bound by and is becoming a party to this Agreement with Zocks and you represent and warrant that you have the authority to bind such entity to these terms. If subscriber does not unconditionally agree to all of the terms of this Agreement, use of the Zocks Services is strictly prohibited. If subscriber has executed, or subsequently executes, an Evaluation Agreement or an enterprise services Agreement with Zocks, then the terms and conditions of such executed Evaluation Agreement or enterprise services Agreement, as applicable, shall govern and control your use of the service or offering.

Zocks may modify this Agreement in its sole discretion, at any time.  When changes are made, Zocks will make a new copy of the Agreement available on its website and update the Last Updated date above.  Zocks will also email Subscriber at the last email address Subscriber provided to Zocks.  Unless otherwise specified in Zocks’s notice, any changes will become effective within thirty (30) days of Zocks’s provision of notice of such updates.  Zocks may require Subscriber to provide consent to the updated Agreement in a specified manner before further use of the Zocks Service is permitted.

Definitions.  As used in this Agreement:

1. “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary.  Subscriber Data is the Confidential Information of Subscriber.  Confidential Information of Zocks includes information derived from or concerning the Zocks Service, the Zocks Platform, the Documentation and the terms of this Agreement.
2. “Connected Account” means any third-party platform connected to, or integrated with, the Zocks Service by or on behalf of Subscriber, such as third party communications platforms.
3. “Connected Account Data” means any data collected from, or provided by, any Connected Account.
4. “Documentation” means any user manuals, handbooks, and online materials provided by Zocks to Subscriber that describe the features, functionality, or operation of the Zocks Platform.
5. “Order Form” means any order form for Zocks Service executed by both parties that references this Agreement, which may include the pricing page on Zock’s website.
6. “Performance Data” means any log files, metadata, telemetry data and other technical performance data automatically generated by the Service relating to the use, performance, efficacy, reliability and/or accuracy of the Zocks Service, which does not contain any personally identifiable information or Subscriber Data.
7. “Subscriber Data” means any data uploaded or transmitted to the Zocks Service by Subscriber, including Connected Account Data.
8. “Users” means Subscriber’s employees, representatives, consultants, contractors, or agents authorized by Subscriber to access the Zocks Service for which applicable fees have been paid.
9. “Zocks Platform” means the technology, including AI and machine learning algorithms, used by Zocks to deliver the Zocks Service to Subscriber.
10. “Zocks Service” means the hosted service delivered by Zocks to Subscriber using the Zocks Platform as more fully described in the Order Form.

Zocks Service

1. Subscription to the Zocks Service.  Subject to the terms and conditions of this Agreement, Zocks hereby grants to Subscriber a non-sublicensable, non-transferable (except as provided in Section 11), non-exclusive subscription to access and use the Zocks Service by solely for Subscriber’s internal business purposes, during the subscription period set forth in the applicable Order Form.
2. Support.  Subject to the terms of this Agreement, Zocks shall use commercially reasonable efforts to (a) provide the Zocks Service in accordance with its historic levels of availability; and (b) provide 9am – 5pm (PST) email support, excluding federal holidays.
3. Free Trials.  In the event Zocks has not yet purchased a subscription to the Zocks Services, but has obtained them pursuant to an Order Form for internal evaluation purposes (a “Free Trial”), then the terms and conditions of Section 2.2, 8, and 9.1 will not apply during such Free Trial period.  Unless otherwise stated in the Order Form, the Free Trial will be limited to a period of fourteen (14) days. Following the expiration of the Free Trial period, the paid subscription set forth under the Order Form will commence, unless Subscriber provides written notice of its intent to terminate such Order Form prior to the expiration of the Free Trial.

Subscriber’s Use of the Zocks Service

1. Access and Security Guidelines.  Each User will be provided access to and use of the Zocks Service through confidential account credentials.  Subscriber will be responsible for all uses of its account, except to the extent caused by Zocks’s negligence.  Subscriber will promptly notify Zocks of any unauthorized use or access to its account.  User seats may not be shared amongst other Users.
2. Restrictions.  Subscriber will not, and will not permit any User or other party to: (a) reverse engineer, disassemble or decompile any component of the Zocks Platform; (b) interfere in any manner with the operation of the Zocks Service, or the Zocks Platform or the hardware and network used to operate the Zocks Service; (c) sublicense any of Subscriber’s rights under this Agreement, or otherwise use the Zocks Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Zocks Platform;  or (e) otherwise use the Zocks Service in any manner that exceeds the scope of use permitted under Section 2.1.
3. Connected Accounts. In order to access many of the features and functions of the Zocks, Service, Subscriber will need to link its Connected Accounts to the Zocks Service.  By granting Zocks access to any Connected Account, (i) Subscriber represents and warrants that it is entitled to disclose any log-in information provided by Subscriber in connection therewith (if applicable) and/or to grant Zocks access to such Connected Accounts, (ii) Subscriber represents and warrants that it is in good standing with respect to such Connected Accounts, and (iii) Subscriber acknowledges that Zocks may access Connected Account Data so that it may be used in accordance with the terms of this Agreement.  Subscriber further acknowledges and agrees that each Connected Account, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Account. Zocks will have no liability for any unavailability of any Connected Account, or any third-party provider’s decision to discontinue, suspend or terminate any Connected Account.
4. App Stores.  In the event Subscriber has downloaded a copy of Zock’s mobile application (an “Application”) onto Subscriber’s device, Subscriber may use such Application in accordance with the terms of this Agreement, and the Application will be deemed part of the Zocks Platform.  Subscriber acknowledges and agrees that the availability of the Application is dependent on the third party from whom Subscriber received the Application, e.g., the Apple App Store or Google Play (each, an “App Store”).  Subscriber acknowledges that the Agreement is between Subscriber and Zocks and not with the App Store.  Zocks, not the App Store, is solely responsible for the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the Application, Subscriber must have access to a wireless network, and Subscriber agrees to pay all fees associated with such access.  Subscriber also agrees to pay all fees (if any) charged by the App Store in connection with the Application.  Subscriber agrees to comply with, and its license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the Application. Subscriber acknowledges that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.

Fees, Payment and Suspension of Services

Subscriber will pay Zocks the fees for the Zocks Service as set forth on the applicable Order Form (“Fees”). Subscriber will be responsible for payment of the applicable Fee for any Zocks Services at the time Subscriber creates its account and selects its annual or monthly package.  Unless otherwise set forth in the applicable Order Form, all subscriptions will continue indefinitely until terminated in accordance with this Agreement. After Subscriber’s initial subscription period, and again after any subsequent subscription period, Subscriber’s subscription will automatically commerce on the first day following the end of such period  and continue for an additional equivalent period at Zock’s then-current price for such subscription, unless Subscriber provides at least thirty (30) days written notice prior to the end of the then-current term of Subscriber’s intent to terminate its subscription.  All requests for subscription cancellations must be sent to support@zocks.io.  All Fees owed by Subscriber in connection with this Agreement are exclusive of, and Subscriber shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes and taxes based on Zocks’s income.  Zocks reserves the right (in addition to any other rights or remedies Zocks may have) to discontinue the Zocks Service and suspend Subscriber’s access to the Zocks Service if any Fees set forth in the applicable Order Form are more than thirty (30) days overdue until such amounts are paid in full.  Subscriber shall maintain complete, accurate and up-to-date Subscriber billing and contact information.

Confidential Information

The receiving party will limit access to the Confidential Information to those who have a need to know such information to use or provide the Zocks Service.  The receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in a reasonable manner.  Upon termination of this Agreement, the receiving party will return to the disclosing party or destroy all copies of the Confidential Information.  The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, or (c) is independently developed by the receiving party.  The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body.

Ownership and Data

1. Zocks Platform and Technology.  Subscriber acknowledges that Zocks retains all right, title and interest in and to the Zocks Platform and all software and all Zocks proprietary information and technology used by Zocks or provided to Subscriber in connection with the Zocks Service (the “Zocks Technology”), and that the Zocks Technology is protected by intellectual property rights owned by or licensed to Zocks.  Other than as expressly set forth in this Agreement, no license or other rights in the Zocks Technology are granted to the Subscriber.  Subscriber hereby grants Zocks a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Zocks Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the Zocks Service.  Zocks shall not identify Subscriber as the source of any such feedback.
2. Subscriber Data.  Subscriber retains all right, title and interest in and to the Subscriber Data.  Subscriber hereby grants to Zocks a non-exclusive, worldwide, royalty-free and fully paid-up license to access and use Subscriber Data to provide the Zocks Services to Subscriber. Subscriber represents and warrants that it has all necessary rights to grant Zocks the foregoing licenses.
3. Business Associate Agreement. In the event the Parties determine that Zocks may be required to process protected health information (as defined under HIPAA), the Parties will enter into a mutually agreeable business associate agreement prior to any such processing.  Subscriber shall not provide, upload, distribute or otherwise make available any protected health information in the absence of any such business associate agreement.
4. Data Security.   Zocks currently utilizes Amazon Web Services, a reputable hosting services provider, to store all Subscriber Data; provided, that, Zocks may utilize other hosting service providers of similar repute, such GCP or Microsoft Azure.  In the event Zocks becomes aware of any loss or unauthorized access, disclosure or use of any Subscriber Data (“Security Breach”), Zocks will (i) promptly notify Subscriber in writing of such Security Breach, and (ii) take reasonable steps to identify the cause of such Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof.  Any notification of any Security Breach will describe, to the extent known, details of the Security Breach, including steps taken to mitigate the potential risks. Zocks Communications, Inc. is committed to maintaining the highest standards of data privacy and regulatory compliance. In alignment with the newly adopted SEC amendments to Regulation S-P, Zocks will notify impacted customers of any unauthorized access to customer information within 72 hours of determining that such an incident occurred, unless a specific notice period is specified in your firm’s MSA. We continue to monitor all applicable SEC, FINRA, and state privacy regulations and will adjust our processes to remain in full compliance.
5. Performance Data. Zocks retains all right, title and interest in and to the Performance Data, and may use Performance Data for any lawful purpose.

Term and Termination

1. Term.  The term of this Agreement will commence on the Effective Date and continue until all Order Forms have expired, unless terminated earlier in accordance with the terms of this Agreement (the “Term”).  Unless otherwise set forth in an Order Form, each Order Form will have an initial term of one (1) year (the “Initial Order Term”), and will automatically renew for successive one (1) year terms (each, a “Renewal Order Term” and collectively with the Initial Order Term, the “Order Term”), unless either party provides no less than thirty (30) days written notice of its intent to terminate the Order prior to the end of the then-current term.  Zocks may increase the Fees for the Zocks Services for any Renewal Order Term by providing no less than sixty (60) days prior written notice of such Fee increase.‍
2. Termination.  Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach.  Upon the expiration or termination of this Agreement for any reason, (a) any amounts owed to Zocks under this Agreement will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information) of the other party.  Zocks agrees that upon expiration or termination of this Agreement, Zocks will remove all Subscriber Data from the Zocks Platform and all Subscriber access to the Zocks Service will cease.  For clarity, nothing herein will be deemed to require Zocks to delete, remove or return any aggregated and anonymized Subscriber Data that Zocks is permitted to use in accordance with Section 6.2(b). Sections 1, 5, 6, 7.2, 8.3, 9-11 will survive the termination of this Agreement.

Warranty; Disclaimer

1. Mutual Warranty. Each party represents and warrants that (a) it has the legal power and authority to enter into this Agreement; (b) it will comply with any and all applicable laws, rules and regulations with respect to its performance of its obligations, and exercise of rights granted to it, hereunder; and (c) it is not bound by any agreement with any third party that would prohibit or interfere with its ability to perform its obligations hereunder.
2. Disclaimer.  Except as expressly provided in Section 8, and to the maximum extent permitted by applicable law: (a) the Zocks Service, Zocks Platform and documentation are provided “as is” and “as available” and (b) Zocks and its suppliers make no other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.

Indemnity

1. By Zocks.  If any action is instituted by a third party against Subscriber based upon a claim that the Zocks Service or Zocks Platform, as delivered, infringes any third party’s intellectual property rights, Zocks shall defend such action at its own expense on behalf of Subscriber and shall pay all damages attributable to such claim which are finally awarded against Subscriber or paid in settlement.  If the Zocks Service or Zocks Platform is enjoined or, in Zocks’s determination is likely to be enjoined, Zocks shall, at its option and expense (a) procure for Subscriber the right to continue using the Zocks Service, (b) replace or modify the Zocks Platform or Zocks Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Subscriber’s access to the Zocks Service and refund any amounts previously paid for the Zocks Service attributable to the remainder of the then-current term.  This Section sets forth the entire obligation of Zocks and the exclusive remedy of Subscriber against Zocks for any claim that the Zocks Service infringes a third party’s intellectual property rights.
2. By Subscriber.  Solely to the extent permitted under applicable law, if any action is instituted by a third party against Zocks relating to (a) Subscriber’s breach or alleged breach of Section 2.1 or 6.3, or (b) Subscriber’s use of the Zocks Services in violation of any applicable laws, rules or regulations, Subscriber will defend such action at its own expense on behalf of Zocks and shall pay all damages attributable to such claim which are finally awarded against Zocks or paid in settlement of such claim.  This subsection states the sole and exclusive remedy of Zocks and the entire liability of Subscriber for the claims and actions described herein.
3. Procedure.  Any party that is seeking to be indemnified under the provision of this Section 9 must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.  

Limitation of Liability

To the extent permitted by law, in no event shall Zocks or Subscriber be liable for special, incidental, consequential or punitive damages or lost profits in any way relating to this Agreement.  In no event shall Zocks’ or Subscriber’s aggregate, cumulative liability in any way relating to this Agreement exceed the amount of fees actually received by Zocks from Subscriber pursuant to the applicable Order Form or Statement of Work during the six (6) months preceding the claim.  The foregoing limitations shall not apply to payment and indemnity obligations.  the parties would not have entered into this agreement but for such limitations.

General Provisions

Zocks may use Subscriber’s name and logo on Zocks’ website and identify Subscriber as a Subscriber of Zocks.  Neither party may assign any rights or obligations arising under this Agreement, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Any attempted assignment or transfer in violation of the foregoing will be null and void.  Subscriber agrees that Zocks may subcontract certain aspects of the Zocks Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Zocks of any of its obligations hereunder.  This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles.  Any notice under this Agreement must be given in writing to the other party at the address set forth above.  Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, or (b) sent by recognized courier service.  This Agreement and the exhibits attached hereto (as modified by the parties from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings.  Only a writing signed by both parties may modify it.  In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.  This Agreement may be executed in counterparts, which taken together shall form one legal instrument.