NON-PRODUCTION SERVICE ACCESS AGREEMENT
ZUORA, INC. AND/OR ITS AFFILIATES (“ZUORA”) IS WILLING TO GRANT THE RIGHT TO ACCESS AND USE A ZUORA NON-PRODUCTION SERVICE TO YOU AS THE INDIVIDUAL, COMPANY, OR OTHER LEGAL ENTITY THAT WILL ACCESS AND USE A NON-PRODUCTION SERVICE (REFERENCED BELOW AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS NON-PRODUCTION SERVICE ACCESS AGREEMENT (“AGREEMENT”). THIS AGREEMENT IS ENTERED INTO UNDER, AND IS HEREBY INCORPORATED BY REFERENCE INTO, A MUTUALLY EXECUTED ORDER DOCUMENT BETWEEN ZUORA AND YOU THAT IDENTIFIES THE RELEVANT NON-PRODUCTION SERVICE. THIS AGREEMENT IS MADE AND ENTERED INTO AS OF THE DATE OF THE LAST SIGNATURE OF SUCH ORDER DOCUMENT (“EFFECTIVE DATE”). BY SIGNING THE ORDER DOCUMENT, AND/OR ACCESSING OR USING A NON-PRODUCTION SERVICE, YOU CONFIRM THAT YOU HAVE READ AND ACCEPT THIS AGREEMENT. THE TERM “ZUORA” ALSO INCLUDES ANY THIRD PARTIES THAT PROVIDE THIRD PARTY SERVICES UNDER AN ORDER DOCUMENT. DEFINED TERMS ARE IDENTIFIED IN SECTION 9 BELOW AND ELSEWHERE IN THIS AGREEMENT.
- Grants of Rights.
Subject to the terms and conditions of this Agreement, Zuora hereby grants You a non-exclusive, non-transferable, non-assignable, worldwide, limited right (without the right to sublicense) to access and use the Non-Production Service solely for Your internal, non-production, evaluation or use of such Non-Production Service in accordance with the applicable Order Document. Except as otherwise provided in an applicable Order Document, the foregoing access and use right is limited to a single Tenant Instance. All rights not expressly granted to You are reserved by Zuora and its licensors.
- Limitations on Use and Your Responsibilities.
2.1 You may not disclose to any third party the results of any evaluation or other use of the Non-Production Service performed by or on behalf of You (e.g., any monitoring of its availability, performance or functionality, or any other benchmarking) without the prior written approval of Zuora.
2.2 You must not: (a) commercially exploit the Non-Production Service by licensing, sublicensing, selling, reselling, transferring, assigning or distributing it or otherwise making it available to any third party in any way; (b) modify or make any derivative works based upon the Non-Production Service; (c) reverse engineer the Non-Production Service; or (d) access or use the Non-Production Service in order to build a product or service that competes with the Non-Production Service or the Production Service.
2.3 You also must not access or use the Non-Production Service to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Non-Production Service or, if applicable, of the Production Service or the data contained therein; or (e) attempt to gain unauthorized access to the Non-Production Service, the Production Service or their related systems or networks.
2.4 You are responsible for all activity occurring under Your User account. You must: (a) notify Zuora immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Non-Production Service; and (b) report to Zuora immediately, and use reasonable efforts to stop immediately, any copying, distribution or other misuse of the Non-Production Service or any Zuora Technology of which You or Your Users become aware.
- Term and Termination.
3.1 Term. The term of each Order Document will begin on the effective date specified therein, and will continue for the initial term specified therein (“Initial Service Term”), unless terminated earlier in accordance with Section 3.2. PLEASE CAREFULLY REVIEW THE FOLLOWING AUTOMATIC RENEWAL TERMS. Unless otherwise set forth in the applicable Order Document, or unless the applicable Order Document is terminated in accordance with Section 3.2, upon expiration of the Initial Service Term of an Order Document, such Order Document will renew automatically for a subsequent renewal term of twelve (12) months (“Renewal Service Term“) at the same pricing as the Initial Service Term, unless either party notifies the other party in writing, at least thirty (30) days prior to the end of the then-current Service Term, that it chooses not to renew such Order Document. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.” Notwithstanding the foregoing, if for some reason You access a Non-Production Service prior to the effective date specified in the applicable Order Document, and/or You access a Non-Production Service after the expiration date specified in the applicable Order Form or after an applicable termination effective date, this Agreement will govern such unauthorized access, without prejudice to any of Zuora’s rights or remedies.
3.2 Termination. Either party may terminate any Order Documents for cause if the other party breaches any material term of this Agreement or any Order Document and fails to cure such breach within thirty (30) days after delivery of notice of such breach. In addition, with respect to any Non-Production Services that You access for free, either party may terminate the applicable Order Document(s) for any reason upon five (5) business days prior written notice. Upon any expiration or termination of any Order Documents, Zuora has the right to terminate Your access to and use of the Non-Production Service thereunder, and Zuora will have no obligations or liability with respect to any data remaining on such Non-Production Service after the termination effective date. Sections 2, 3.2, 4, 5, 6, 7, 8 and 9 will survive any expiration or termination of this Agreement.
- Confidentiality and Feedback.
4.1 As used herein, “Confidential Information” refers to non-public financial, technical, commercial or other information or tangible materials concerning the business and affairs of the party to this Agreement that discloses such information hereunder (each a “Disclosing Party”) to the party that receives such information hereunder (each a “Receiving Party”), including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, and business methods or plans, which a reasonable person in the relevant industry should understand to be confidential based on the nature of the information and all relevant context. For the avoidance of doubt, Confidential Information with respect to You includes Your non-public data You store in the Non-Production Service, and with respect to Zuora includes any pricing terms offered to You under any Order Document, non-public technical information regarding the Non-Production Service, and the results of any evaluation of the Non-Production Service performed by or on behalf of You for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Confidential Information that is provided in writing or other tangible form should be conspicuously designated as “Confidential” (or with some other similar legend), and Confidential Information that is provided orally should be identified as confidential at the time of disclosure.
4.2 Confidential Information does not include information that (a) becomes generally available to the public other than as a result of a disclosure by the Receiving Party, (b) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party or in connection with the performance by the Disclosing Party of its obligations under this Agreement, (c) becomes lawfully available to the Receiving Party on a non-confidential basis from an independent third party, or (d) is independently developed by the Receiving Party without use or reference to Disclosing Party’s Confidential Information.
4.3 The Receiving Party must not use any of the Disclosing Party’s Confidential Information for any purpose other than carrying out the Receiving Party’s obligations or exercising its rights under this Agreement (the “Purpose”). Except to the extent expressly permitted by this section, each Receiving Party shall not disclose to any third party any Confidential Information of the Disclosing Party received in anticipation of, or in connection with the performance of, this Agreement, without the prior written consent of the Disclosing Party. For purposes of the preceding sentence, however, “third party” does not include any Affiliates, agents, employees, attorneys, accountants, other professional advisors, or potential acquirers of the Receiving Party, as long as (a) the Receiving Party is responsible for any non-compliance with this Agreement by such person or entity, and (b) such person or entity (i) has a commercially reasonable need for access to such Confidential Information in connection with the Purpose, and (ii) is under contractual confidentiality obligations substantially equivalent to this section.
4.4 A disclosure by the Receiving Party of any of the Disclosing Party’s Confidential Information (a) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (b) as otherwise required by law, or (c) necessary to establish the rights of either party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, the Receiving Party gives the Disclosing Party prompt written notice and reasonable cooperation so the Disclosing Party may seek to prevent or limit such disclosure.
4.5 Each Receiving Party’s confidentiality obligations with respect to the Disclosing Party’s Confidential Information shall remain in effect for the term of this Agreement specified in Section 3.1 and for a period of three (3) years after the termination or expiration of this Agreement.
4.6 You grant Zuora a non-exclusive, perpetual, worldwide, transferable, royalty-free license (including the right to sublicense) to make, use, copy, develop, distribute, offer to sell, sell, or lease Feedback as a component of the Non-Production Service and/or the Production Service. “Feedback” means any comments or suggestions made by You to Zuora in connection with this Agreement regarding the Non-Production Service, the Production Service, or any Zuora Technology.
- Warranty Disclaimer and Limitation of Liability.
5.1 WARRANTY DISCLAIMER. THE NON-PRODUCTION SERVICE IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. ZUORA DOES NOT WARRANT THAT THE NON-PRODUCTION SERVICE (INCLUDING ANY RELATED PROFESSIONAL SERVICES OR DELIVERABLES) IS OR WILL BE ERROR-FREE, MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. WITHOUT LIMITING THE FOREGOING, ZUORA’S NON-PRODUCTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ZUORA IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY ZUORA.
5.2 LIMITATION OF LIABILITY. IN NO EVENT WILL ZUORA’S AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT (OR ANY RELATED PROFESSIONAL SERVICES OR RELATED DELIVERABLES) EXCEED THE AMOUNT YOU PAID FOR THE NON-PRODUCTION SERVICE UNDER THE APPLICABLE ORDER DOCUMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY BEFORE THE CLAIM AROSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ZUORA OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, OPPORTUNITIES, DATA OR USE) ARISING OUT OF THE USE OR INABILITY TO USE THE NON-PRODUCTION SERVICE, EVEN IF ZUORA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Orders, Fees, Taxes & Payment
The terms of this Section 6 apply to Your access to and use of each Non-Production Service that You purchased for a fee. These terms do not apply to Your access to or use of any Non-Production Service that You access for free.
6.1 Orders. You will order the Non-Production Service by completing and signing an Order Document. Zuora will accept or reject such Order Document within ten (10) days. Each accepted, fully executed Order Document will deemed to incorporate by reference the terms of this Agreement as if attached and made an integral part of such Order Document. If Your business practices require a purchase order number be issued prior to payment of any Zuora invoices issued under an Order Document, then such purchase order number must be provided to Zuora prior to the Effective Date of such Order Document. Your execution and return of the applicable Order Document to Zuora without designating a purchase order number will be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that You may provide to Zuora or use in connection with procurement of the Non-Production Service (or any software) from Zuora will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Zuora to object to such terms, provisions or conditions.
6.2 Fees. You will pay all fees and charges as specified on each executed Order Document (“Fees”). All payment obligations are non-cancelable and all amounts paid are non-refundable. Zuora charges and collects in advance for Fees. Unless otherwise set forth in the applicable Order Document, payment terms are net thirty (30) days from the date You receive Zuora’s invoice, without setoffs, withholdings or deductions of any kind, and payment is due in US dollars. If an applicable Order Document provides for payment via credit card or electronic money transfer (e.g., ACH), such payment will be chargeable on the date of Zuora’s invoice. If Your use of a Non-Production Service exceeds the usage permitted under the applicable Order Document, You will pay the corresponding additional fees within thirty (30) days after You receive the applicable invoice. Zuora reserves the right to modify the Fees under any Order Documents, effective upon commencement of the next Renewal Service Term of such Order Documents, by notifying Customer in writing at least thirty (30) days before the end of the then-current Service Term under such Order Documents, unless Customer notifies Zuora in writing before the end of the then-current Service Term that Customer chooses not to renew such Order Document.
6.3 Taxes. Zuora’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You will be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Zuora’s income. If Zuora has the legal obligation to pay or collect taxes for which You are responsible, the appropriate amount will be invoiced to and paid by You unless You provide Zuora with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.4 Payment. If You believe Your bill is incorrect, You must contact Zuora in writing within thirty (30) days after You receive the invoice containing the amount in question to be eligible to receive an adjustment or credit. You agree to provide Zuora with accurate billing and contact information, including Your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and administrator. You agree to update this information within thirty (30) days of any change to it. If the contact information You have provided is false or fraudulent, Zuora reserves the right to terminate Your access to and use of the Non-Production Service in addition to any other legal remedies. In addition, if You fail to make any payments as set forth in this Agreement or in any applicable Order Documents, or You seek a refund of any amounts previously paid under this Agreement (except to the extent a court of competent jurisdiction finally determines Your position had more legal merit than Zuora’s), and Zuora deems legal enforcement necessary, You will pay all reasonable legal fees and costs incurred by Zuora in connection therewith.
6.5 Non-Payment and Suspension. In addition to any other rights granted to Zuora herein, Zuora reserves the right to suspend or terminate this Agreement, any related Order Documents, and Your access to and use of the Non-Production Service if Your account becomes delinquent and is uncured for a period of thirty (30) days. Delinquent invoices are subject to interest of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection. You will continue to be charged for Fees during any period of suspension due to Your delinquency. If Zuora terminates this Agreement or any Order Document for cause under Section 3.2, You will be obligated to promptly pay all remaining Fees due for the remainder of the applicable Initial Service Term or Renewal Service Term.
- Additional Terms
7.1 Your Data. Zuora does not own any of Your Data. You, not Zuora, will have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Your Data, and Zuora will not be responsible or liable for the deletion, correction, destruction, damage, or loss of Your Data not caused by Zuora. Zuora’s use of Your Data will be limited to the purpose of providing the Non-Production Service to You.
7.2 Credit Card Data. You must not store or process any credit card data in a Production Copy Environment or in any other Non-Production Service that does not comply with the PCI DSS. You also must not use any other Non-Production Service in a manner that may make it non-compliant with PCI DSS – e.g., by storing any credit card data in any custom fields (even if such data is encrypted).
7.3 Indemnity. You will indemnify and hold Zuora, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with a claim alleging that Your breach of this Agreement or use of Your Data infringes a copyright, trademark or service mark of, misappropriates a trade secret of, or has violated any other rights of, a third party; provided, however, that Zuora must (a) promptly give notice of the claim to You, (b) give You sole control of the defense and settlement of the claim (but You may not settle such claim unless such settlement unconditionally releases Zuora, its employees, and affiliates of all liability and does not adversely affect Zuora’s interests), and (c) give You all available relevant information and reasonable assistance.
This Agreement will be governed by the federal laws of the U.S.A., and the laws of the State of California, without regard to their conflicts of law rules, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or a Non-Production Service will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara, California, U.S.A. Except in the event of an acquisition, merger, or other change in control, neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. This Agreement may be modified only if authorized representatives of both parties consent in writing. Failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision. Any waiver to be effective must be signed by an authorized officer of both parties. If any provision of this Agreement is held illegal, invalid, or unenforceable, that provision will be deemed amended to achieve an economic effect as near as possible to that provided by the original provision and the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected. All legal notices (e.g., claimed breach or termination of this Agreement or an Order Document) required to be provided under this Agreement must be delivered in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified US mail to the other party at the address set forth in the applicable Order Document or as otherwise communicated to the other party in writing. All other notices from You to Zuora may be made by emailing email@example.com and Zuora may give notice by emailing Your contact as specified on the Order Document.
As used in this Agreement and in any Order Document(s) associated herewith:
“Affiliate” means a company or other legal entity that controls, is controlled by, or is under common control with Zuora or You;
“Non-Production Service” means one or more instances of the non-production Zuora service environment designated on the applicable Order Document, as further described in Zuora’s Knowledge Center (e.g., at https://knowledgecenter.zuora.com/BB_Introducing_Z_Business/D_Zuora_Environments);
“Order Document(s)” means the contract signed by both Zuora and You, evidencing the order for a Non-Production Service, which is typically a Zuora Statement of Work or Order Form;
“Production Copy Environment” means the category of Non-Production Service described as such in Zuora’s Knowledge Center (e.g., at https://knowledgecenter.zuora.com/BB_Introducing_Z_Business/D_Zuora_Environments);
“Production Service” means Zuora’s online integrated subscription management, billing, data analysis, or other Z-Billing services provided to You under a separate contract for production use, if any (including Zuora’s account, product catalog, subscription management and billing operations/payment gateway modules, as described in the relevant product data sheet(s) in Zuora’s Knowledge Center, located at https://knowledgecenter.zuora.com), developed, operated, and maintained by Zuora and accessible via https://www.zuora.com or another designated web site or IP address;
“User(s)” means Your employees, representatives, consultants, contractors or agents who are authorized to use the Non-Production Service and have been supplied user identifications and passwords by You (or by Zuora at Your request);
“Your Data” means any data, information or material that You or Your Users put in the Non-Production Service or otherwise provide to Zuora under this Agreement; and
“Zuora Technology” means all of Zuora’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by Zuora in providing the Non-Production Service.