Last updated: May 05, 2023
This Customer Agreement (“Agreement”) governs your access to, and use of, any ZeroGate-branded products and services provided to you by ZeroGate (“Services”). The “Effective Date” of this Agreement is the earlier of the date you (“Customer”) enter into this Agreement and the date you first access the Services.
You may enter into this Agreement in a variety of ways, including by executing this Agreement separately, executing an Order Form that indicates your acceptance of this Agreement, or clicking an “I accept” (or similar) button that indicates your acceptance of this Agreement.
If you are entering into this Agreement on behalf of an entity, you must have the necessary authority to enter into this Agreement on behalf of that entity before proceeding. In such a case, you represent that you are authorized to bind that entity to this Agreement and subsequent references to “Customer” refers to that entity.
In this Agreement:
“Admin Account” means a User Account with administrative rights or permissions.
“Affiliate” means, in relation to a party, an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with that party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
“API” means application programming interface.
“Applicable Data Protection Laws” means all worldwide data protection and privacy laws and regulations applicable to the processing of any personal information or data contained in the Customer Data.
“Beta Service” means a Service, or a feature of a Service, that is designated or presented to Customer as alpha, beta, experimental, pilot, limited release, developer preview, early access, non-production, evaluation, provided prior to general commercial release, or similar.
“Customer” means the individual or entity entering into this Agreement and receiving the Services.
“Customer Data” means data that Customer or Users transmit to or through the Services.
“Fees” means all amounts payable by Customer in connection with Services under an applicable Order Form.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented.
“Order Form” means any account signup, online checkout, or online order process; or order form, statement of work (“SOW”), or similar document, that Customer enters into with ZeroGate that references or is made subject to this Agreement.
“Personal Data” means “personal data” (as that term, or a substantively equivalent term such as personal information or personally identifiable information, is defined under Applicable Data Protection Laws) that is processed by ZeroGate on behalf of Customer in connection with this Agreement.
“Service Account” means a type of User Account that is created for the purpose of being used by system processes. The User associated with a Service Account is considered to be the User primarily responsible for managing such account and how it is used by system processes.
“Software” means any software included with the Services that is made available to Customer by ZeroGate for installation on Customer or User devices.
“Software Updates” means updates, upgrades, bug fixes, patches, and other error corrections to the Software.
“Status Page” means the website located at https://status.zerogate.com (or a successor URL) on which ZeroGate provides information about the status of its services.
“ZeroGate” means ZeroGate Inc., a Delaware corporation.
“ZeroGate Mark” means a ZeroGate trademark, service mark, logo, or other mark or trade dress.
“ZeroGate Materials” means visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products, software, services, and all other elements of the Services.
“Usage Data” means any data derived from the operation or support of the Services, including statistical and diagnostic data about the configuration, use, and performance of the Services. Examples of Usage Data include application crash reports, User interactions with user interfaces, bandwidth use, and application telemetry.
“USD” means United States dollars.
“User” means an individual that is authorized by Customer to use the Services. Users may include, for example, Customer’s and its Affiliates’ employees, consultants, customers, external users, contractors, agents, and third parties with whom Customer does business.
“User Account” means an account assigned to a User that can be used to access the Services. A Service Account is a type of User Account.
“User Terms” means the User Terms of Service available at https://zerogate.com/legal.
2.1. Provision of Services
ZeroGate will provide the Services to Customer in accordance with this Agreement, including any Order Forms.
To the extent that use of the Services requires Customer to install Software, ZeroGate grants to Customer a non-exclusive, non-transferable, and non-sublicensable license to install, copy and use the Software solely as necessary to use the Services in accordance with this Agreement and ZeroGate documentation. If Customer’s right to use the Services terminates, Customer’s license to any related Software will also terminate.
2.3. Software Updates
ZeroGate may occasionally make Software Updates available to Customer and ZeroGate recommends that Customer installs them at its earliest convenience. All Software Updates will be deemed to be subject to the terms of this Agreement. ZeroGate will not be liable for failure of the Services to operate effectively or correctly if Customer does not install the Software Updates in a timely manner.
Unless otherwise expressly permitted in writing by ZeroGate, Customer will not (and will not permit a User or third party to):
(a) lease, sell, resell, or use for timesharing or service bureau purposes, the Services;
(b) interfere with, disrupt, alter, or modify any Services, or create an undue burden on the Services or the networks or services connected to the Services;
(c) engage in abusive or excessive usage of the Services (whether intentionally or unintentionally), which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability or functionality of the Services;
(d) use any framing techniques to enclose any ZeroGate Mark or ZeroGate Materials (defined below) or use any meta tags or other “hidden text” using the ZeroGate Marks;
(e) introduce unauthorized software or automated agents or scripts into the Services so as to create multiple accounts, or generate automated searches, requests or queries;
(f) use any method unauthorized by ZeroGate (whether manual or automated) to extract or scrape data from the Services;
(g) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the Software by any means whatsoever, except to the extent this restriction is prohibited by law;
(h) perform or publish any benchmark tests or analyses relating to the Services;
(i) purchase, access, or use the Services for the purpose of building or improving a competitive product or service, or for any other directly competitive purpose;
(j) circumvent or attempt to circumvent any limitations that ZeroGate imposes on Customer’s account in accordance with this Agreement (such as account suspensions for non-payment);
(k) probe, scan, or test for vulnerabilities in the Services or any other ZeroGate system or network;
(l) use the Services for any unlawful purposes or activities, or to facilitate unlawful activities;
(m) use the Services to transmit any code, agents, software, or links to such materials (such as viruses, worms, Trojan horses, and malware) with the intent to do harm;
(n) permit Users to share User Accounts or access credentials to User Accounts; or
(o) use the Services in a way that would subject ZeroGate to any industry-specific regulations relating to Personal Data or specific types of sensitive data that ZeroGate would not otherwise be generally subject to. For example, Customer may not use the Services to collect, process, store, or otherwise handle “protected health information” (as defined under HIPAA) in a manner that would subject ZeroGate to HIPAA without entering into a separate business associate agreement with ZeroGate that permits Customer to do so.
2.5. User Accounts
Customer may allow Users that Customer designates to access and use the Services, subject to their acceptance of the User Terms and any limitations agreed to by the parties. Each User Account may only be allocated to and used by a single User. The Services are not intended for Users under the age of 16 and Customer represents and warrants that no Users will be under the age of 16. Customer is responsible for ensuring that Users’ use of the Services comply with the User Terms and this Agreement. If there is a conflict between the User Terms and this Agreement, this Agreement will prevail to the extent of the conflict.
2.6. Third Party Services
Customer may be able to integrate the Services with a third party service not provided by ZeroGate (such as a third party service that uses an API) (“Third Party Service”). Third Party Services are not ZeroGate services, so ZeroGate does not support or warrant them. If Customer chooses to use a Third Party Service, Customer acknowledges that such Third Party Service may access, use, disclose, provide, modify, or delete Customer Data in accordance with its functionality, and Customer agrees that ZeroGate will not be responsible for any such actions.
2.7. Updates to the Services
Customer acknowledges that, as is typical for software-as-a-service products, ZeroGate may continually update the Services. Customer agrees that its purchase of the Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public documents made by ZeroGate regarding future functionality or features.
2.8. Suspension of Services
ZeroGate may temporarily suspend or disable the Services, or restrict Customer’s or any User’s access to the Services or any component thereof:
(a) if ZeroGate reasonably determines that Customer or a User has breached this Agreement, including Section 2.4 (Restrictions);
(b) for a failure to timely pay any Fees;
(c) if ZeroGate reasonably determines such action is required to avoid or mitigate material harm to ZeroGate or its customers, such as if the Services are experiencing excessive use, denial of service attacks, or other attacks or disruptions outside of ZeroGate’s control;
(d) to address any emergency security concerns, such as if ZeroGate becomes aware that a User Account may have been used by an unauthorized person;
(e) for scheduled or emergency maintenance of the Services; or
(f) if required to do so by law or a governmental or regulatory authority.
Where practicable in the circumstances and permitted by law, ZeroGate will notify Customer of any such suspension, disablement, or restriction and limit its scope and duration to the minimum time necessary to redress or resolve the reason for such action. ZeroGate will endeavor to schedule any maintenance to off-peak hours. To receive advance notice of any scheduled maintenance that ZeroGate expects to cause material temporary unavailability of the Services, Customer may subscribe to service updates via the Status Page.
2.9. Unauthorized Use
Customer will promptly notify ZeroGate if Customer becomes aware of any actual or suspected unauthorized use of or access to the Services.
3. Subscriptions, Fees & Payment Terms
3.1. Subscription Term
Services provided to Customer on a subscription basis (“subscriptions”) will be provided for the duration specified on the Order Form for that subscription (“Subscription Term”). Unless otherwise agreed, each of Customer’s subscriptions will automatically renew for periods equal to the initial Subscription Term specified for that subscription until Customer cancels its subscription through the billing page accessible through certain Admin Accounts, or until either party provides written notice of non-renewal to the other party at least 30 days prior to a renewal date.
Customer will pay to ZeroGate all Fees when due. Except as otherwise specified in this Agreement or prohibited by applicable law, payment obligations are non-cancelable and Fees paid are not refundable (including for any unused portion of a Subscription Term).
3.3. Payment Terms
Payment terms are typically specified on an Order Form. If not otherwise specified on an Order Form, the following payment terms will apply:
(a) all monetary amounts on an Order Form are denominated in USD;
(b) all Fees will be paid by Customer in USD;
(c) invoices are due within 30 days of the invoice date; and
(d) if Customer’s billing method is by invoice, Fees will be invoiced in full by ZeroGate upon execution of the applicable Order Form (including for multi-year subscriptions) and upon renewal.
3.4. Overdue Payments
All past due payments, except to the extent reasonably disputed, will accrue interest at the highest rate allowed under applicable law but in no event more than 1.0% per month.
3.5. Purchase Orders
If Customer issues to ZeroGate a purchase order upon entering into an Order Form, any such purchase order is for Customer’s internal purposes only, and any terms in such purchase order are rejected by ZeroGate, do not amend this Agreement, and have no effect. If Customer requests ZeroGate to reference a purchase order number on a ZeroGate invoice, such reference is included for administrative convenience only.
3.6. Price Changes
ZeroGate may change the Fees that ZeroGate charges for any Services that automatically renew by giving Customer at least 30 days’ prior written notice of such changes, provided that any such changes will not take effect earlier than the next renewal date for the applicable Service.
Unless otherwise stated, ZeroGate’s Fees do not include any taxes, levies or duties of any nature, including value-added, sales, use, or withholding taxes, or similar government fees or taxes assessable in any jurisdiction (collectively, “Taxes”). Customer is responsible for paying any Taxes associated with Customer’s purchases under this Agreement, except for those assessable against ZeroGate based on ZeroGate’s income, property, or employees. If ZeroGate has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.7, ZeroGate will invoice Customer and Customer will pay that amount unless Customer provides ZeroGate with a valid tax exemption certificate authorized by the appropriate taxing authority. Where applicable, Customer will provide its VAT/GST registration number on an Order Form to confirm the business use of the ordered services.
3.8. Withholding Tax
Taxes will not be deducted from payments to ZeroGate, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, ZeroGate receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon ZeroGate’s request, Customer will provide to ZeroGate its proof of withholding tax remittance to the respective tax authority.
3.9. Card Payments
If Customer provides ZeroGate with credit or debit card (“Payment Card”) details for the payment of Fees, Customer: (a) represents that it is authorized to use such Payment Card; (b) authorizes ZeroGate to charge such Payment Card on a periodic basis for the Fees when due, including upon sign up for paid Services and upon renewal; (c) agrees to keep its Payment Card details valid and current; and (d) agrees to pay any processing fees that are charged by third-party payment processors or Payment Card issuers. If Customer’s Payment Card is declined when ZeroGate attempts to charge it, ZeroGate may try to charge it again at a later time. If ZeroGate does not receive payment, ZeroGate may suspend or terminate Customer’s Services.
3.10. Treatment of Overages
During a Subscription Term, ZeroGate may review Customer’s usage of the Services (e.g. the number of User Accounts provisioned by Customer). Customer agrees to pay for any usage beyond the amounts previously purchased by Customer (“Overage”). Unless otherwise agreed in writing, if additional User Accounts are required to be purchased by Customer to address any Overages, ZeroGate may bill Customer for such additional User Accounts at the per unit pricing in effect at the time (as specified in the Order Form for the underlying subscription), and prorated for the portion of the Subscription Term remaining at such time.
3.11. Pricing Terminology
References to a “seat” or “user” in an Order Form for pricing purposes is a reference to a User Account.
4. Free Trials, Free Subscriptions & Beta Services
4.1. Free Trials & Free Subscriptions
If Customer receives a free trial of the Services (including participating in a free proof of concept), Customer may only use those Services for the duration of that trial for the purpose of evaluating the desirability of purchasing the Services. Unless otherwise specified in an Order Form, either party may cancel a free trial before it ends by providing written notice to the other. ZeroGate may terminate any Services under a free subscription plan with or without notice to Customer at any time, for any reason, including due to account inactivity.
4.2. Beta Services
If Customer chooses to receive Beta Services, Customer agrees to comply with any written requirements provided by ZeroGate regarding those Beta Services. Beta Services are provided for Customer’s internal testing and evaluation purposes only and are not intended for use in production environments, with sensitive data, or as mission critical systems. Customer acknowledges and agrees that: (a) Beta Services are not ready for commercial release, may not operate properly, and may contain errors; (b) ZeroGate is under no obligation to release a commercial version of the Beta Services and may unilaterally abandon development of Beta Services without liability to Customer; and (c) that Customer uses Beta Services at its own risk. Customer is solely responsible for maintaining and protecting all data and information that is processed by Beta Services. Customer will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of Customer’s use of the Beta Services.
5. Intellectual Property
5.1. ZeroGate Intellectual Property
As between Customer and ZeroGate, ZeroGate retains ownership of the Services, the ZeroGate Materials, and all intellectual property rights and other proprietary rights related to them. No licenses or rights are granted to Customer by ZeroGate other than as expressly provided for in this Agreement. Customer may not remove or alter any copyright, trademark or other notices or proprietary markings appearing within the Services and Software provided to Customer. Except as permitted by any brand and trademark use policies or rules that ZeroGate publishes, this Agreement does not grant Customer any right to use any ZeroGate Mark or brand element.
5.2. Customer Intellectual Property
As between Customer and ZeroGate, Customer retains ownership of the Customer Data and all intellectual property rights and other proprietary rights related to them. Customer grants ZeroGate, its Affiliates, and their applicable contractors, a worldwide, royalty-free, non-exclusive license to use, host, copy, transmit, modify, display, and distribute Customer Data for the limited purposes of ZeroGate providing, maintaining, supporting, and improving the Services. Customer warrants that Customer has all necessary rights to provide Customer Data to ZeroGate and that Customer Data, and its use by ZeroGate in connection with providing the Services, will not violate the rights of any third party or any applicable laws.
5.3. Usage Data
ZeroGate may collect and use Usage Data to provide, maintain, support, and improve its products and services. ZeroGate may not share with a third party any Usage Data that includes Customer Confidential Information, except: (a) in accordance with Section 6 (Confidentiality); or (b) to the extent Usage Data is anonymized such that Customer and Users cannot be identified.
Customer allows ZeroGate to identify Customer as a ZeroGate customer by its name, logo and/or other type of mark on the ZeroGate website and other marketing materials. Any goodwill arising from the use of Customer’s name and marks by ZeroGate will inure to Customer’s benefit.
If Customer provides ZeroGate with any feedback about ZeroGate’s products and services, ZeroGate may use that feedback and incorporate it into its products and services without any obligation to Customer.
“Confidential Information” means any and all information disclosed by a party (“Discloser”) that has or will come into the possession or knowledge of the receiving party (“Recipient”) in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or prospective customers, suppliers, technology or business, including, where you are the Discloser, Customer Data, and, where ZeroGate is the Discloser, the Services and the Software; provided that Discloser’s Confidential Information does not include: (a) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (b) information that is publicly available through no wrongful act of Recipient; or (c) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
6.2. Confidentiality Obligations
Recipient agrees that during and after the term of this Agreement it will not, except to exercise its rights or perform its obligations under this Agreement: (a) disclose Confidential Information of the Discloser to any person, except to its own personnel, contractors or Affiliates that have a “need to know” and that have entered into written agreements (or are otherwise bound by legal obligations) no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (b) use Confidential Information of the Discloser; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. A Recipient will take commercially reasonable efforts to safeguard the Discloser’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type and importance.
6.3. Exceptions to Confidentiality
Notwithstanding Section 6.2 (Confidentiality Obligations), Recipient may disclose Discloser’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (b) in the case of ZeroGate, to potential assignees, acquirers or successors of ZeroGate if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger or other corporate transaction involving the business or assets of ZeroGate.
7. Term & Termination
This Agreement starts on the Effective Date and continues until the earlier of: (a) 30 days after the date on which all Order Forms have been terminated or completed; and (b) the date on which this Agreement is terminated. If this Agreement is terminated, then all subscriptions and Order Forms will also immediately terminate.
7.2. Termination for Cause
A party may terminate this Agreement, a subscription, or any Order Form for cause upon written notice: (a) if 30 days have elapsed following written notice to the other party of its material breach of this Agreement and such breach remains uncured at the end of such 30 day period, or (b) if the other party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to winding up, insolvency, receivership, administration, liquidation, examinership, assignment for the benefit of creditors, or other similar process.
7.3. Consequences of Termination
(a) Any Termination. Upon termination of an Order Form or subscription: (i) you will be liable to pay to ZeroGate any Fees accrued for the period prior to the effective date of termination; (ii) you will delete any copies of Software from your system; and (iii) each party will, upon the written request of the other, delete the other party’s Confidential Information and provide written confirmation of such action.
(b) Termination for Breach. If this Agreement is terminated by you due to ZeroGate’s material breach, ZeroGate will refund to you that portion of any prepaid Fees related to the Services not yet provided. If this Agreement is terminated by ZeroGate due to your material breach, you will pay any accrued but unbilled Fees and any unpaid Fees covering the remainder of the term of the applicable Order Forms or subscriptions had they not been terminated.
The following Sections will survive termination of this Agreement: Section 2.4 (Restrictions), Section 3 (Subscriptions, Fees & Payment Terms), Section 4 (Free Trials, Free Subscriptions & Beta Services), Section 5 (Intellectual Property), Section 6 (Confidentiality) to Section 9 (Limitation of Liability), and Section 14 (Miscellaneous).
7.5. Unauthorized Use and Suspension
We may suspend your access or any User’s access to the Services if we reasonably believe that you or your Users have breached this Agreement. We will notify you of any such suspension and the reason it was imposed.
8. Representations & Disclaimers
Each party represents and warrants that: (a) it has full power and authority to enter into this Agreement; and (b) it will comply with all laws and regulations applicable in connection with its provision or use of the Services, as applicable.
Except as expressly provided in this Agreement and to the extent permitted by applicable law, ZeroGate makes no warranties of any kind, whether express, implied, statutory or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Except as expressly provided in this Agreement, ZeroGate provides the Services on an “as is” and “as available” basis, and makes no representations regarding the availability, reliability, quality, or accuracy of the Services, or regarding any Customer Data.
9. Limitation Of Liability
9.1. Liability Exclusions
To the extent permitted by applicable law and except for any damages due to gross negligence or intentional misconduct of either party, in no event will either party be liable under or in connection with this agreement for: (a) any indirect, consequential, special, incidental, punitive or exemplary damages, under any theory of law, including tort or (b) loss of or damage to: (i) data, (ii) business, (iii) revenues, or (iv) profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible, and even if a remedy fails of its essential purpose.
9.2. Liability Limitations
In no event shall the aggregate liability of each party together with all of its Affiliates arising out of or related to this agreement exceed the total amount paid by Customer hereunder for the Services in the 12 month period preceding the first incident from which the liability arose. The foregoing limitation shall apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit Customer’s and Customer’s Affiliates’ payment obligations for the Services and any liability of either party for any damages arising out of gross negligence or intentional misconduct of such party. Notwithstanding anything to the contrary herein, any liability of ZeroGate and its affiliates to Customer or its Affiliates relating to any Services provided during a free trial period, free services or Beta Services shall be limited to US$100.
9.3. Basis of the Bargain
You acknowledge and agree that ZeroGate has offered the Services, set its prices, and entered into this Agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and ZeroGate, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and ZeroGate.
10. Changes To This Agreement
ZeroGate may make changes to this Agreement at any time for a variety of reasons, such as to reflect changes in applicable law or to account for new Services or functionality. If a revision materially alters your rights as determined by ZeroGate in its sole discretion, we will use reasonable efforts to notify you in advance of the change becoming effective, including by sending a notification to the e-mail address(es) associated with your account. The most current version of this Agreement for the Services will be posted on the ZeroGate website. Changes will be effective no sooner than the day they are publicly posted. If you do not want to agree to any changes made to this Agreement, you should stop using the Services, because by continuing to use the Services after the date the changes become effective, you indicate your agreement to be bound by the updated Agreement.
11. Governing Law
All rights and obligations hereunder will be governed by the laws of the State of Delaware, without regard to the conflicts of law provisions of such jurisdiction. In case of any dispute courts of County of New Castle, Delaware shall have jurisdiction to resolve such dispute.
12. Dispute Resolution
The parties agree to exercise reasonable efforts, to resolve any dispute in good faith. If a dispute is not resolved within sixty (60) days of notice, either party may resort to a formal proceeding at the courts of Delaware, USA.
All communications and notices to be made or given pursuant to this Agreement must be in the English language.
15. Contact Us
If you have questions or concerns regarding this Policy, please feel free to contact us by email or write to us at:
Attn: Privacy Department
1993, 1007 N Orange St. 4th Floor , Wilmington, DE, New Castle, US, 19801
Email: [email protected]