Z-Insights MSA

TERMS OF SERVICE AGREEMENT

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

This Terms of Service Agreement (“Agreement”) constitutes a contract between you as the individual, the company, or the legal entity that will be access the Subscription Service (“Customer” or “You”) and Zuora Inc. (“Zuora”) as of the date the Order Form that references this Agreement is executed by the Customer (“Effective Date”). This Agreement governs the use of and access to Z-Insights.

1. Definitions

“Agreement” means these Customer Terms of Service and all materials referred to herein.

“Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a two (2) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.

“Account” means a single customer, prospect, lead, or other entity (other than a User) whose Account Information is used by you through the Subscription Service.

“Account Information” means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the Subscription Service or uploaded by you to the Subscription Service.

“Confidential Information” means all information disclosed by you to Zuora or by Zuora to you which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, your Customer Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’’s Confidential Information.

“Customer Data” means all information that you submit and received by the Subscription Service.

“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.

“Zuora Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service.

“Maximum Accounts” means the maximum number of Accounts you are permitted to use with the Subscription Service as identified on your Order Form.

“Maximum Users” means the maximum number of Users you are permitted to have using the Subscription Service as identified on your Order Form.

“Order Form” or “Order” means the Zuora-approved form by which you agree to subscribe to the Subscription Service.

“Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.

“Subscription Service” means Z-Insights, our web-based applications, tools and platform that you have subscribed to by an Order Form.

“Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.

“Third-Party Products” means products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.

“Third-Party Sites” means third-party websites linked from within the Subscription Service.

“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.

“We”,“us” or “our” means Zuora, Inc.

2. The Subscription Service

a. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement.

b. Limits. Limits may apply to the number of Accounts and Users. Any limits will be specified on your Order Form.

c. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term. We might provide some or all elements of the Subscription Service through third party service providers.

d. Additional Features. You may subscribe to additional features of the Subscription Service by entering into a new Order Form.

3. Customer Support

Email and chat support are included in your Subscription Fee. Email support can be accessed through the Zuora application or by emailing support@Zuora.com. We commit to a 4-hour response time between the business hours of 8 AM and 6 PM Pacific. Chat Support is available from within the Zuora application and is staffed between the business hours of 8 AM and 6 PM Pacific. Messages can also be left after hours, and will be responded to the following business day.

4. Fees and Payments

a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i) exceed your Maximum Accounts or Users, (ii) change products or base packages, or (iii) subscribe to additional features or products, including increasing the number of Accounts or Users. Where a price change applies to you, we will charge or invoice you under the new price structure, starting with the next Billing Period in the Subscription Term, except as provided below under “Fee Adjustments During a Billing Period.” In order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs. We will monitor or audit remotely the number of Accounts and Users in the Subscription Service.

b. Fee Adjustments in Next Billing Period. If you exceed your Maximum Accounts or Users in a Billing Period, then your Subscription Fee will be adjusted at the beginning of the next Billing Period up to the current base package and tier price that corresponds with both the maximum number of Accounts and Users from the prior Billing Period. This process will continue for each Billing Period during the Subscription Term. We determine the number of Accounts and Users in your Subscription Service. Once increased, your Subscription Fee will not decrease, even if there is a subsequent reduction in the number of Accounts or Users.

c. Fee Adjustments During a Billing Period. The Subscription Fee will increase during the course of a Billing Period if you exceed your Account or User Limit in a Billing Period after notice from us. The Subscription Fee will be adjusted up to the tier price that corresponds with your maximum monthly number of accounts and users from the current Billing Period. The Subscription Fee will also increase during a Billing Period if you change products or subscribe to additional features for use during the Billing Period.

d. Payment against Invoice. If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified on the Order Form or Invoice.

e. Payment Information. You will keep your Account Information and billing information up to date. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.

5. Subscription Term and Renewal

a. Initial Subscription Term. The initial subscription term shall begin on the effective date of your Subscription and expire at the end of the period selected during the subscription process (“Initial Subscription Term”).

b. Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). Written notice of non-renewal must be sent no more than ninety (90) days but no less than thirty (30) days in advance of the end of the Subscription Term. The Renewal Subscription Term shall be: (i) on the then-current terms and conditions of this Agreement, and (ii) subject to any renewal pricing provided on your Order Form. Should you decide not to renew, you may send your notice of non-renewal by email to support@Zuora.com.

c. End of Subscription Term. The Subscription Term will end on the expiration date and cannot be canceled before its expiration, unless otherwise stipulated in the Order Form.

6. Zuora’s Proprietary Rights

This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service is protected by intellectual property laws. The Subscription Service belongs to and is the property of us or our licensors (if any). We retain all ownership rights in the Subscription Service. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on Zuora Content and the Subscription Service in whole or in part, by any means, except as expressly authorized in writing by us. Zuora, the Zuora logo, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission.

We encourage all customers to comment on the Subscription Service and provide suggestions for improving it. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service without payment to you.

7. Customer’s Proprietary Rights

As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service to you.

8. Customer Responsibilities

To realize the full value of the Subscription Service, your participation and effort are needed. Responsibilities that are typically required include: providing top level internal goals for the use of the Subscription Service; adding usage tracking beacons to your software product; supporting the integration of the Subscription Service with other systems; and participating in success review meetings.

9. Publicity

You grant us the right to add your name and company logo to our customer list and website.

10. Customer Data

a. Limits on Zuora. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct. We will use Customer Data only in order to provide the Subscription Service to you and only as permitted by applicable law, this Agreement, and our Privacy Policy, located at https://www.zuora.com/privacy-statement/.

b.  Automatically Collected and Transmitted Data. The Subscription Services collects from Your environment as a part of the server log and automatically transmits to Zuora, which may include, without limitation, Your IP address (“Transmitted Information”). The Transmitted Information will be used for the purpose of providing forensic analysis in the event of a security breach.

c. Stored Data. The Subscription Service receives from Your environment at Your election and stores on AWS server data, which may include, without limitation, Your customer’s user name, and email address (“Stored Information”). Zuora’s use of Stored Information is at Your election to perform analysis to enable the functionality of the Subscription Service and will not be transmitted to Zuora’s server.

d.  Sharing and Transfer. Zuora may also use statistics derived from the information collected through monitoring of the Subscription Services (the “Collected Information”) or submitted by You, to monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner.  You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you or your customers or users.The Collected Information may be accessible by Zuora employees or contractors on a need-to-know basis, exclusively to be used in accordance with the purposes described above. For the same purposes the Collected Information may be shared with partners and vendors that process information on behalf of Zuora. Zuora has taken steps so that the Collected Information, if transferred, receives an adequate level of protection.

e. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.

f. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. It is Your responsibility to ensure that any disclosure by You to Zuora of Sensitive Information of Your users or third parties is in compliance with national laws governing the collection, use and protection of Sensitive Information applicable to Your country or region of operation. In particular, it is Your responsibility to inform users and third parties that You are providing their information to Zuora, to inform them of how it will be used and to gather appropriate consents required for such transfer and use.

g. Disclosures to Law Enforcement. Subject to applicable laws, Zuora reserves the right to cooperate with any legal process and any law enforcement or other government inquiry related to Your use of the Subscription Service. This means that Zuora may provide documents and information relevant to a court subpoena or to a law enforcement or other government investigation.

h. Contacting Zuora about Your privacy when using Subscription Service at security@zuora.com.

11. Confidentiality

Subject to the express permissions of these Terms, you and Zuora will protect each other’’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms, and shall disclose such Confidential Information solely to those of our respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.

12. Use and Limitations of Use

Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.

You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account.

13. Third-Party Sites and Products

Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the inclusion of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.

14. Indemnification

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your use of the Subscription Service, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

15. Disclaimers; Limitations of Liability

a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE OR ZUORA CONTENT FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.

c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

16. Termination, Suspension and Expiration

a. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term, unless otherwise stipulated in the Order Form.

b. Suspension for Prohibited Acts. We may suspend any User’s access to the Subscription Service for use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.

c. Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service upon fifteen (15) days’ notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

d. Suspension for Present Harm. If your application connected to the Subscription Service is: (i) being subjected to denial of service attacks or other disruptive activity, (ii) being used to engage in denial of service attacks or other disruptive activity, (iii) creating a security vulnerability for the Subscription Service or others, (iv) consuming excessive bandwidth, or (v) causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.

e. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Zuora Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

f. Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. We may withhold access to the Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.

17. General

a. Amendment; No Waiver. We may update and change any part or all of this Agreement, including the fees and charges associated with the use of the Subscription Service. If we update or change this Agreement, the updated Agreement will be posted at https://www.Zuora.com/terms. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.

If you do not agree with a modification to the Terms of Service, you must notify us in writing within thirty (30) days of the modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Terms of Service published by us on our website will apply.

No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

b. Governing Law and Jurisdiction. This Agreement is to be construed in accordance with and governed by laws of the State of California, excluding its conflict of law provisions. Zuora and you agree to submit to the personal and exclusive jurisdiction of, and agree that venue is proper in, the California State or Federal Courts located in the County of Alameda, California, for any such legal action or proceeding. The United Nations Convention on International Sale of Goods, the application of which is expressly excluded, does not govern this Agreement.

c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

e. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

f. Compliance with Laws. We will comply with all U.S. state and federal laws in our provision of the Subscription Service and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service.

g. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

h. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.

To Zuora:      Zuora, Inc.     Attention: Tom Krackeler     1901 Harrison St. Suite 1100     Oakland, CA  94612  To you:      Mailing address as provided on your Zuora Order Form or updated by you.

We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

i. Entire Agreement. This Agreement (including each Order Form), along with our Privacy Policy, is the entire agreement between us for the Subscription Service and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service.

j. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law.

k. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

l. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

m. Export. You agree to comply with all applicable export laws.

n. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

o. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Fees and Payments’, ‘Zuora’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.

p. Precedence. In the event of a conflict between the terms of this Agreement and an Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control, but only as to that Order Form or Statement of Work.