Terms of Use
CirrusDCS Service Agreement
This
Services Agreement ("Agreement") governs your access to and use of
the CirrusDCS Middleware (the Service). Please read this Agreement carefully,
and contact us if you have any questions.
1. DEFINITIONS
1.1. Agreement means this Service Agreement, and unless otherwise
stated, any addendums, schedules, exhibits, or attachments to any
of the foregoing.
1.2. Ancillary Program means any software agent or tool owned or
licensed by ZKTeco that ZKTeco makes available to Customer for
download as part of the Hosted Services for purposes of facilitating
Customers access to, operation of, and use with,the Services Environment.
The term Ancillary Program does not include Separately Licensed Third Party Technology.
1.3. Biometric Data means any information based on an individuals retina or
iris scan, fingerprint, voiceprint, or scan of hand or face geometry which is
used to identify an individual, regardless of how it is captured, converted,
stored or shared.
1.4. Customer refers to the individual or entity that has executed this Agreement.
1.5. Customers Application means Customers instance of the Workday Time
Tracking module that provides the API for connectivity to the CirrusDCS
provided by ZKTeco. Services under this Agreement, including ZKTeco Programs
and Services Environments, ZKTeco intellectual property, and all derivative
works thereof, do not fall within the meaning of the term Customers Applications.
1.6. Customers Content means data sourced from Customers instance
of the Workday Time Tracking Module for distribution to ZKTeco
terminals provided for use by end users.
1.7. Govermental Authority means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
1.8. Hardware means any time clock device sold by ZKTeco for use
with Hosted Services, a description of which shall be included
in any related Order, as defined herein.
1.9. Hosted Services and CirrusDCS means, collectively, the CirrusDCS
hosted service, a SaaS time clock solution specifically build for and
integrated with Workdays Time Tracking module, and the Services described
in the Customers Order and in Schedule 2(A).
The term Hosted Services does not include Professional Services.
1.10. Law means any applicable statute, law, ordinance, regulation,
rule, code, order, constitution, treaty, common law, judgment,
decree, other requirement or rule of law of any Governmental Authority.
1.11. Order refers to each ZKTeco ordering document signed by duly
authorized representatives of both Parties which references this
Agreement, identifies the Services ordered by Customer from ZKTeco,
sets forth the prices for the Services, and contains other applicable
information, terms and conditions.
1.12. Personal Data means any information that identifies,
relates to, describes, is reasonably capable of being associated with,
or could reasonably be linked, directly or indirectly, with a particular
Employee or Designated User.
1.13. Professional Services means,collectively, the consulting, design,
training, and any other deliverables described in Customers Orders,
including those specified in Schedule 2, section B. The term Professional
Service does not include Hosted Services.
1.14. Program Documentation refers to program user manuals, guides,
or other materials for the ZKTeco Programs and any help windows
and read me files for such ZKTeco Programs that are accessible from
within the Services. The Program Documentation describes technical and
functional aspects of the ZKTeco Programs.
1.15. Program Markings refers to ZKTeco logos, CirrusDCS logos,
software ownership markings within ZKTeco Programs, and any other
logo or symbol owned and/or used by ZKTeco.
1.16. Separate Terms refers to separate license terms that are
specified in the Program Documentation, Service Specifications,
read me or notice files, and that apply to Ancillary Programs.
1.17. Separately Licensed Third Party Technology refers to third party
technology that is licensed by Customer and not under the terms of this
Agreement or a part of the Services. For purposes of clarity, Separately
Licensed Third Party Technology may be a part of Customers human resources
punch time process and interacts with the Services but is in no way part of
the Services or the Services Environment.
1.18. Services means, collectively, both the Hosted Services and
Professional Services that Customer has ordered.
1.19. Services Environment refers to the combination of hardware and
software components owned, licensed or managed by ZKTeco to which ZKTeco
grants Customer access as part of the Hosted Services, which Customer have ordered.
As applicable and subject to the terms of this Agreement and Customers order,
ZKTeco Programs, Ancillary Programs, Customers Content and Customers Applications
may be hosted in the Services Environment.
1.20. Service Specifications means any documentation provided to Customer
by ZKTeco, including but not limited to Program Documentation, the Order,
and this Agreement, describing Services, Service Period, and ZKTeco Programs.
1.21. Services Period refers to the period of time for which Customer
ordered Hosted Services as specified in Customers Order.
1.22. Service Level Agreement SLA means ZKTeco's Service Level Agreement.
1.23. Software as a Service SaaS means, collectively, the online,
web-based applications and platform provided by ZKTeco and ordered by Customer
pursuant to this Agreement and as specified in one or more Order(s).
1.24. Successor in Interest In the event of a sale or other reorganization
of Customer, the provisions of this Agreement shall be binding upon and inure to
the benefit of the entity surviving or resulting from such sale or reorganization.
Customer shall require such surviving entity to assume and agree to perform this
Agreement in the same manner and to the same extent that Customer would have been
required to perform it if no such succession had taken place.
1.25. Users means those employees, contractors, and end users, as applicable,
authorized by Customer or on Customers behalf to use the Hosted Services in
accordance with this Agreement and Customers Order.
1.26. ZKTeco Programs refers to the software products owned or licensed
by ZKTeco to which ZKTeco grants Customer access as part of the Hosted Services,
including Program Documentation, and any program updates provided as part of the
Hosted Services. The terms ZKTeco Programs does not include Ancillary Programs.
2. RIGHTS GRANTED
2.1. For the duration of the Services Period and subject to Customers payment
obligations, and except as otherwise set forth in this Agreement or Customers
Order, Customer has the non-exclusive, non-assignable royalty free, worldwide
limited right to access and use the Services that Customer ordered, including
anything developed by ZKTeco and delivered to Customer as part of the Services,
solely for Customers internal business operations and subject to the terms of
this Agreement and Customers Order,including the Service Specifications.
Customer may allow Customers Usres to the Services for this purpose and
Customer is responsible for Customers Users compliance with this Agreement.
2.2. Customer does not acquire under this Agreement any right or license to
use the Services, including the ZKTeco Programs and Services Environment, in
excess of the scope and/or duration of the Services stated in Customers Order.
Upon the end of the Services ordered, Customers right to access and use the
Services will terminate.
2.3. To enable ZKTeco to provide Customer and Customers Users with the Services,
Customer grants ZKTeco the right to use, process and transmit, in accordance
with this Agreement, Customers Application for the duration of the Services
Period plus any additional post-termination period during which ZKTeco provides
Customer with access to retrieve an export file from Customers Application.
If Customers Application includes third party programs, Customer acknowledges
that ZKTeco may allow providers of those third party programs to access the
Services Environment, including Customers Applications, as required for the
interoperation of such third party programs with the Services. ZKTeco will
not be responsible for any use, disclosure, modification or deletion of Customers
Content or Customers Application resulting from any such access by third party
program providers or for the interoperability of such third party programs with the Services.
2.4. As part of certain Hosted Services offerings, ZKTeco may provide
Customer with access to Ancillary Programs within the Services Environment.
The type and scope of any Ancillary Program is defined in the Service Specifications
applicable to Customers Order. The third party owner, author or provider of
such Ancillary Program retains all ownership and intellectual property rights
in and to that content, and Customers rights to use such technology are subject to,
and governed by, the terms applicable to such content as specified
by such third party owner, author or provider.
3. OWNERSHIP AND RESTRICTIONS
3.1. Customer retains all ownership and intellectual property rights in and
to Customers Content and Customers Applications.
ZKTeco or its licensors retain all ownership and intellectual
property rights to the Services, including ZKTeco Programs and Ancillary
Programs, and derivative works thereof, and to anything developed or delivered
by or on behalf of ZKTeco under this Agreement.
3.2. Customer may not, or cause or permit others to:
(a) remove or modify any Program Markings or any notice of
ZKTeco or it's licensors proprietary rights;
(b) make the Program Documentation or ZKTeco Programs resulting
from the Services (excluding Customers Content and Customers Applications)
available in any manner to any third party for use in the third partys business
operations (unless such access is expressly permitted for the
specific Services Customer has acquired);
(c) modify, make derivative works of, disassemble, decompile, or reverse engineer
any part of the Services (the foregoing prohibition includes but is not limited
to review of data structures or similar materials produced by programs),or access
or use the Services in order to build or support, and/or assist a third party
in building or supporting,products or Services competitive to ZKTeco;
(d) perform or disclose any benchmark or performance tests of the Services,
including the ZKTeco Programs, without ZKTeco's prior written consent;
(e) perform or disclose any of the following security testing of the Services
Environment or associated infrastructure without ZKTeco prior written
consent: network discovery, port and service identification, vulnerability
scanning, password cracking, remote access
testing, or penetration testing; and
(f) license, loan, sell, rent, lease,transfer, assign, distribute, display,
host, outsource, disclose, permit timesharing or service bureau use, or
otherwise commercially exploit or make the Services, ZKTeco Programs, Ancillary
Programs, Services Environments or materials available, to any third party, other
than as expressly permitted under the terms of the applicable Order.
3.3. The rights granted to Customer under this Agreement
are also conditioned on the following:
(a) except as expressly provided herein or in Customers Order, no part
of the Services may be copied, reproduced, distributed, republished,
downloaded, displayed, posted or transmitted in any form or by any means,
including but not limited to electronic, mechanical, photocopying, recording,
or other means; and
(b) Customer makes every reasonable effort to prevent unauthorized third parties
from accessing the Services.
4. SERVICE SPECIFICATIONS
4.1. The Services are subject to and governed by this Agreement.
4.2. Customer acknowledges that use of the Services in a manner not
consistent with the Service Specifications may adversely affect
Services performance and/or may result in additional fees.
4.3. ZKTeco may make changes or updates to the Services (such as infrastructure, security,
technical configurations, application features, etc.) during the Services Period,
including to reflect changes in technology, industry practices, patterns of system use,
and availability of Ancillary Programs, but in no event shall any such changes or
updates materially degrade the functionality of the Services.
The Service Specifications are subject to change at ZKTeco's discretion; however,
ZKTeco changes to the Service Specifications will not result in a material reduction
in the level of performance or availability of the applicable Services provided to Customer
for the duration of the Services Period.
5. USE OF THE SERVICES
5.1. Customer is responsible for identifying and authenticating all Users, for
approving access by such Users to the Services, for controlling against
unauthorized access by Users, and for maintaining the confidentiality
of usernames, passwords and account information. By federating or otherwise
associating Customers usernames, passwords and accounts with ZKTeco, Customer
accepts responsibility for the timely and proper termination of User records in
Customers local (intranet) identity infrastructure or on Customers local computers.
ZKTeco is not responsible for any harm caused by Customers Users, including individuals
who were not authorized to have access to the Services but who were able to gain access
because usernames, passwords or accounts were not terminated on a timely basis in Customers
local identity management infrastructure or Customers local computers. Customer is responsible
for all activities that occur under Customers and Customers usernames, passwords or
accounts or as a result of Customers or Customers Users access to the Services,
and agrees to notify ZKTeco immediately of any unauthorized use.
5.2. Customer agrees not to use or permit use of the Services, including by uploading,
emailing, posting, publishing or otherwise transmitting any material including
Customers Content, Customers Applications and Ancillary Programs, for any purpose that may
(a) menace or harass any person or cause damage or injury to any person or property,
(b) involve the publication of any material that is false, defamatory, harassing or obscene,
(c) violate privacy rights or promote bigotry, racism, hatred or harm,
(d) constitute unsolicited bulk e-mail, junk mail, spam or chain letters;
(e) to the best of its knowledge constitute an infringement of intellectual
property or other proprietary rights, or
(f) otherwise violate applicable Laws, ordinances or regulations.
In addition to any other rights afforded to ZKTeco under this Agreement,
ZKTeco reserves the right, but has no obligation, to take remedial action if
any material violates the foregoing restrictions, including the removal or disablement
of access to such material. ZKTeco shall have no liability to Customer in the event that
ZKTeco takes such action. Customer shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, appropriateness and ownership of all of
Customers Content and Customers Applications Customer agrees to defend and
indemnify ZKTeco against any claim arising out of a violation of Customers
obligations under this section.
(a) Customer is required to accept all patches, bug fixes, updates, maintenance and
service packs (collectively, Patches) necessary for the proper function and security
of the Services, including for the ZKTeco Programs, as such Patches are generally released
by ZKTeco as described in the Service Specifications.
Except for emergency or security related maintenance activities,
ZKTeco will notify Customer regarding the scheduling of application of Patches, where possible,
based on ZKTeco's next available standard maintenance window.
6. TERMINATION OR SUSPENSION OF SERVICES
6.1. Services provided under this Agreement shall be provided for the Services Period
defined in Customers Order, unless earlier suspended or terminated in accordance
with this Agreement or the Order. If stated in the Service Specifications, certain
Hosted Services that are ordered will be renewed for additional Term, as established
in section 3, unless
(i) Customer provides ZKTeco with written notice no later than thirty (30) days prior
to the end of the applicable Services Period of Customers intention not to renew such Hosted Services, or
(ii) ZKTeco provides Customer with written notice no later than ninety (90) days prior to
the end of the applicable Services Period of its intention not to renew such Hosted Services.
6.2. Upon the end of the Services, Customer no longer has rights to access or use
the Services, including the associated ZKTeco Programs and Services Environments;
however, at Customers request, and for a period of up to 60 days after the end of
the applicable at Customers expense, ZKTeco will make available to Customer Customers
content and Customers Applications as existing in the Services Environment on the date of termination.
At the end of such 60-day period, and except as may be required by Law, ZKTeco will delete
all Customer Content and Customer Applications that remain in the Services
Environment (e.g. punch data collected from the time clock device).
6.3. ZKTeco may temporarily suspend Customers password, account, and access to or use of
the Services if Customer violates any provision within the Rights Granted Ownership
and Restrictions, Fees and Taxes, Use of the Services ,or Export sections of this Agreement,
or if in ZKTeco reasonable judgment, the Services or any component thereof are about
to suffer a significant threat to security or functionality. ZKTeco will provide advance
notice to Customer of any such suspension in ZKTeco's reasonable discretion
based on the nature of the circumstances giving rise to the suspension. ZKTeco
will use reasonable efforts to re-establish the affected Services promptly
after ZKTeco determines, in its reasonable discretion, that the situation
giving rise to the suspension has been cured; however, during any suspension
period, ZKTeco will make available to Customer Customers Content and Customers
Applications as existing in the Services Environment on the date
of suspension. ZKTeco may terminate the Services under an order if any of the
foregoing causes of suspension is not cured within 30 days after ZKTeco's
initial notice thereof. Any suspension or termination by ZKTeco under this
paragraph shall not excuse Customer from Customers obligation to make
payment(s) under this Agreement.
6.4. If either Party breaches a material term of this Agreement and fails to correct the
breach within 30 days of written specification of the breach, then the
breaching party is in default and the non-breaching party may terminate the
order under which the breach occurred. If ZKTeco terminates the order as
specified in the preceding sentence, Customer must pay within 30 days all
amounts that have accrued prior to such termination, as well as all sums
remaining unpaid for the Services ordered under this Agreement plus related
taxes and expenses. Except for nonpayment of fees, the non-breaching party may
agree in its sole discretion to extend the 30-day period for so long as the
breaching party continues reasonable efforts to cure the breach. Customer agrees
that if Customer is in default under Agreement and such
default has not been cured within 30 days after its receipt of written notice
of the default, Customer may not use those Services ordered.
6.5. Provisions that survive termination or expiration of this Agreement are those
relating to limitation of liability, infringement indemnity, payment and others which
by their nature are intended to survive.
7. NON DISCLOSURE
7.1. By virtue of this Agreement, the Parties may have access to information that is
confidential to one another (Confidential Information ). The Parties each
agree to disclose only information that is required for the performance of obligations
under this Agreement.
Confidential Information shall be limited to the terms and pricing under this Agreement,
Customers Content and Customers Applications residing in the Services
Environment, and all information clearly identified as confidential at the time of disclosure.
7.2. A Partys Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of the other party;
(b) was in the other partys lawful possession prior to the disclosure and had not been obtained by
the other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
(d) is independently developed by the other party.
7.3. The Parties agree not to disclose the others Confidential Information to any third party
other than as set forth in the following sentence for a period of three years from the date of
the disclosing partys disclosure of the Confidential Information to the receiving party;
however, ZKTeco will hold Customers Confidential Information that resides within the Services
Environment in confidence for as long as such information resides in the
Services Environment.We each may disclose Confidential Information only to those
employees, agents or subcontractors who are required to protect it against
unauthorized disclosure in a manner no less protective than required under this
Agreement. ZKTeco will protect the confidentiality of Customers Content or
Customers Applications residing in the Services Environment in accordance with
the ZKTeco security practices defined as part of the Service Specifications
applicable to Customers Order. In addition, Customers personal data will be
treated in accordance with the terms of Section 12 below.
Nothing shall prevent either party from disclosing the terms
or pricing under this Agreement or orders placed under this Agreement in any
legal proceeding arising from or in connection with this Agreement or from
disclosing the Confidential Information to a governmental entity as required by Law.
8. DATA PROTECTION AND DATA PRIVACY
8.1. In performing the Services, ZKTeco will comply with the ZKTeco Services
Privacy Policy, which is incorporated by reference, and all applicable data protection laws.
The ZKTeco Services Privacy Policy is subject to change at ZKTecos discretion however,
ZKTeco policy changes will not result in a material reduction in the level of protection provided
for Customers personal data provided as part of Customers content during the Services Period
of Customers Order.
8.2. Customer must maintain its own data collection, disclosure, retention,
and storage policies in compliance with all applicable laws. Where required by law,
Customer agrees to adopt a privacy policy in alignment with all applicable laws
governing the collection, use, transfer and retention of Personal Data.
Customer agrees to provide ZKTeco, upon reasonable request, with Customers
adopted privacy policy.
8.3. The Service Specifications applicable to Customers Services define the administrative,
physical, technical and other safeguards applied to Customers Content residing in the Services
Environment, and describe other aspects of system management applicable to the Services.
Customer is responsible for any security vulnerabilities, and the consequences
of such vulnerabilities, arising from Customers Content and Customers
Applications, including any viruses, Trojan horses, worms or other programming
routines contained in Customers Content or Customers Applications that could
limit or harm the functionality of a or that could damage, intercept or expropriate data.
8.4. To the extent that Customer collects, captures, stores, or otherwise uses
Biometric Data relating to an individual, Customer must
(i) first inform the individual from whom Biometric Data will be collected, in writing and prior to collecting his or her Biometric Data, that
Biometric Data is being collected, stored, and/or used;
(ii) indicate, in writing, the specific purpose(s) (which may not be other than employment-related purposes) and length of time for which Biometric Data is
being collected, stored, and/or used; and
(iii) receive a written release from the individual (or his or her legally authorized representative) authorizing
the Customer and ZKTeco to collect, store, and/or use the Biometric Data and
authorizing the Customer to disclose such Biometric Data to ZKTeco and any Customer
third-party service providers.
8.5. To the extent that Customer collects, captures, stores, or otherwise uses User body temperature
information, Personal Data, or any other data related to an individual, Customer must maintain it's
own policies in compliance with all applicable Federal, state, and local laws. Customer
agrees to provide ZKTeco, upon reasonable request, with Customers adopted privacy policy.
8.6. Customer agrees to adopt a commercially reasonable policy for managing data requests from Users,
which shall safeguard the rights of Users and respect the original purpose of such data collection.
Customer, as the Party which determines the means and purposes for processing Customer Content,
shall be responsible for receiving, investigating, documenting, and responding
to all User requests for inspection or erasure of Personal Data.
8.7. If Customer receives a request from a User to exercise such individuals rights under applicable
data protection laws, and Customer requires ZKTeco's assistance to respond to such request in accordance
with applicable data protection laws, ZKTeco shall assist the Customer by
providing any necessary information and documentation that is under ZKTecos control. ZKTeco shall be given reasonable
time to assist the Customer with such requests in accordance with applicable law.
9. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
9.1. ZKTeco warrants that it will perform (i) Hosted Services in
all material respects as described in the Service Specifications, and
(ii) Professional Services in a professional manner in accordance with the Service Specifications. If the
Services provided to Customer are not performed as warranted, Customer must
promptly provide written notice to ZKTeco that describes the deficiency in the
Services (including, as applicable, the service request number notifying ZKTeco of
the deficiency in the Services).
9.2. ZKTECO DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR
UNINTERRUPTED, OR THAT ZKTECO WILL CORRECT ALL SERVICES ERRORS,
(B) THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMERS CONTENT OR CUSTOMERS
APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT
PROVIDED BY ZKTECO, AND
(C) THE SERVICES WILL MEET CUSTOMERS REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS.
CUSTOMER ACKNOWLEDGES THAT ZKTECO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS
FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND
OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ZKTECO IS
NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING
FROM SUCH PROBLEMS. ZKTECO IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE
PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMERS
CONTENT, CUSTOMERS APPLICATIONS OR THIRD PARTY CONTENT.
ZKTECO DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY,
COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIMS
ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT.
9.3. FOR ANY BREACH OF THE SERVICES WARRANTY, CUSTOMERS EXCLUSIVE REMEDY AND ZKTECO'S ENTIRE LIABILITY
SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF
WARRANTY, OR, IF ZKTECO CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A
COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE DEFICIENT SERVICES AND
ZKTECO WILL REFUND TO CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT
CUSTOMER PRE-PAID TO ZKTECO FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
9.4. EXCLUSIONS.
THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 14 SHALL NOT APPLY WITH RESPECT TO:
(I) DAMAGES TO PERSONS AND/OR TANGIBLE PROPERTY
OCCASIONED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY,
(II) BREACHES BY CUSTOMER OF LICENSE TERMS APPLICABLE TO VENDOR PROVIDED SOFTWARE
AND THIRD PARTY PRODUCTS AS SET FORTH ABOVE,
(III) CUSTOMERS UNAUTHORIZED USE OF VENDORS OR THIRD PARTY VENDORS INTELLECTUAL PROPERTY,
MATERIALS OR ASSETS; (IV IN SECTION 5.1,
(III) DAMAGES INCURRED AS A RESULT OF A BREACH BY A PARTY OF ITS
OBLIGATIONS UNDER SECTION 11 THAT RESULT IN THE
DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY, OR (IV) CLAIMS THAT
ARE THE SUBJECT OF INDEMNIFICATION PURSUANT TO SECTION 15 (WHICH ARE SUBJECT
TO THE LIMITS, IF ANY CONTAINED THEREIN).DAMAGES AS LIMITED BY THIS SECTION 13 ARE CUSTOMERS SOLE AND EXCLUSIVE REMEDY IF ANOTHER REMEDY
IS PROVIDED AND SUCH REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
9.5. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER
EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE,
SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY
AND FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT),
DATA, OR DATA USE. ZKTECO'S MAXIMUM LIABILITY FOR ALL DAMAGES
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER €™S ORDER, WHETHER IN CONTRACT OR TORT, OR
OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS
ACTUALLY PAID TO ZKTECO FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
CLAIM LESS ANY REFUNDS OR CREDITS RECEIVED BY CUSTOMER FROM ZKTECO UNDER SUCH ORDER.
11. SERVICE ANALYSES
ZKTeco may (i) compile statistical and other information
related to the performance, operation and use of the Services, and (ii) use
data from the Services Environment in aggregated form for security and
operations management, to create statistical analyses, and for research and
development purposes (clauses i and ii are collectively referred to as Service
Analyses). ZKTeco may make Service Analyses publicly available; however, Service
Analyses will not incorporate Customers Content or Confidential Information in a
form that could serve to identify Customer or any individual, and Service Analyses do not constitute
personal data. ZKTeco retains all intellectual property rights in Service Analyses.
12. CHANGES
We reserve the right, at our sole discretion, to modify or replace these Terms
at any time.
If a revision is material we will try to provide at least thirty
(30) days' notice prior to any new terms
taking effect. What constitutes a material change will be determined at our
sole discretion.
13. PRECEDENCE
In the event of any conflict between the terms of this
Agreement and the Customers Master Services Agreement (the MSA), if the
Parties have agreed to an MSA, then the terms of the MSA shall prevail over
this Agreement.
14. ENTIRE AGREEMENT
This agreement represents the entire understanding between the parties with respect to
its subject matter and supersedes any previous communication or agreements that may exist.
15. ASSIGNMENT
Customer may not assign this agreement or any of its rights or obligations under
this agreement without ZKTeco's written consent.
16. NOTICES
16.1. Method of Notice. The parties will give
all notices and communications between the parties in writing by
(i) personal delivery, (ii) a nationally-recognized, next-day courier service,
(iii) first-class registered or certified mail, postage prepaid to the address that a
party has notified to be that party's address for the purposes of this section.
16.2. Receipt of Notice. A notice given
under this agreement will be effective on the other party's
receipt of it, or if mailed, the earlier of the other party's receipt of
it and the fifth business day after mailing it.
17. GOVERNING LAW
This agreement will be governed, construed, and enforced in accordance with the
laws of the State of New Jersey, without regard to its conflict of laws rules.
18.SEVERABILITY
If any part of this agreement is declared unenforceable or invalid, the
remainder will continue to be valid and enforceable.