Terms and Conditions
1.0 AGREEMENT. These Zezel L.L.C. Terms and Conditions (“Terms and Conditions”), and any Zezel L.L.C. Service Orders (as described in Section 2.2 below) are hereby incorporated into this Agreement, as the case may be, (“Service Agreement”) and constitute the “Master Agreement” by and between Purchaser and Zezel L.L.C. (collectively, the “Parties” or each individually a “Party”) for the services specified on Service Orders (“Services”). The attachments to these Terms and Conditions (“Attachments”) further describe the services of Zezel L.L.C. and are hereby incorporated into, and made a part of, these Terms and Conditions by this reference. The Attachments set forth additional terms and conditions for the applicable Service. “Zezel” means the Zezel L.L.C. -affiliated entity that is providing the secure global server network Services.
2.0 SERVICES AND SERVICE ORDERS.
2.1 Subject to the terms and conditions of the Master Agreement, ZEZEL shall provide Customer with the Services in accordance with any Service Order entered into by the Parties. Customer understands that ZEZEL, upon entering into a Service Order with Customer may, at the discretion of Zezel, utilize one or more of its affiliates or third parties to deliver the Services (“Third Party Services”). The Third Party Services shall meet or exceed the security requirements set forth by Zezel and may be subject to additional terms and conditions. Unless otherwise set forth, ZEZEL shall use commercially reasonable efforts to provide the Services seven (7) days a week, twenty four (24) hours a day, excluding scheduled maintenance, required repair and events beyond the reasonable control of Zezel.
2.2 Customer shall request Services by subscribing to the Zezel global secure server network service or more proposed service and/or work order(s) (in the form provided or approved by Zezel) or via the Zezel website order system. Upon acceptance by Zezel of a proposed service and/or work order(s), such proposed service and/or work order(s), shall be deemed a “Service Order” hereunder and shall be deemed incorporated into, and made a part of, the Master Agreement by this reference. A proposed service and/or work order shall be deemed accepted upon the earlier of (a) ZEZEL acceptance of such proposed service and/or work order in writing; or (b) ZEZEL commencement of delivery of the Service(s) set forth in such proposed service and/or work order.
3.0 SERVICE & EQUIPMENT INSTALLATION.
3.1 Customer shall obtain and maintain, or ensure that each Customer employee or branch office which uses the Service (each, an “End User”), shall obtain and maintain throughout the Term, broadband internet service with open ports for the Zezel K Phone to communicate over the IP and/or cellular 3G data service or better for the TheZphone to communicate over the cellular data network. The Zezel phones will be configured at the factory for the Customer. The Customer will not install, configure, upgrade, and or remove applications and or programs from the Zezel phones. Customer shall not “sync” the theZphone with any manufacturer, other than Zezel, to include but not limited to the Apple store service. Customer shall not charge ZEZEL, and shall ensure that ZEZEL does not incur, any fees or expenses whatsoever in connection with Customer’s provision of space, power or access as described in these Terms and Conditions, or otherwise in connection with Customer’s performance of its obligations pursuant to this Section 3; and any such fees or expenses charged by a Customer End User shall be borne solely by Customer.
4.0 SUPPORT & MAINTENANCE. ZEZEL shall use commercially reasonable efforts to maintain the ZEZEL-secure global network of servers (collectively, “ZEZEL Equipment”), on what is known as the ZEZEL K Cloud used by ZEZEL to provide Service. Equipment and services on Customer’s side, as well as any other Customer-provided equipment, are the responsibility of Customer. ZEZEL shall provide a telephone number and email address for inquiries and remote problem support for the Service. All such Customer support shall be provided only to Customer’s designated personnel, as mutually agreed upon by ZEZEL and Customer. Customer is responsible for all communications and interfaces with its End Users. In no event shall ZEZEL be responsible for providing support for any network, equipment or software not provided and installed by ZEZEL or for issues or problems beyond its control. Customer shall provide routine operational Service support for ZEZEL Equipment and Service components collocated at Customer’s or an End User’s facility, including without limitation by performing reboots, as requested by ZEZEL.
5.0 CUSTOMER OBLIGATIONS.
5.1 It is the Customer’s responsibility to use the Service in compliance with all applicable laws and regulations and the terms of the Master Agreement. Customer shall not resell or redistribute (whether for a fee or otherwise) the Service, or any portion thereof, or make any use of the Service other than for Customer’s internal business purposes, unless otherwise agreed in writing by ZEZEL. It is the Customer’s responsibility to ensure that its End Users’ use of the Service, if any, shall comply with all applicable laws and regulations in the country of use.
5.2 Customer is solely responsible for: (a) all use (whether or not authorized) of the Service by Customer, an End User or any person or entity, which use shall be deemed Customer’s use for purposes of the Master Agreement.
6.0 TERM. The Master Agreement shall commence on the earlier to occur of (a) the date of the last signature on the Service Agreement (the “Effective Date”) or (b) the ZEZEL commencement of delivery of the Service(s) set forth in a Service Order, and shall remain in effect for the term specified in the Service Agreement, or if no term is specified, until the expiration or termination of all Service Orders (the “Term”). The term for the applicable Service shall be set forth in the Service Order (“Initial Order Term”) and shall remain in effect until expiration as set forth in the Service Order. Unless otherwise specified in the Service Agreement, if the Customer continues to receive Services after the expiration of the Initial Order Term, the Services shall renew on an annual basis on the same terms and conditions (“Renewal Order Term”, collectively with Initial Order Term, “Order Term”). The fees for the Renewal Order Term shall be as set forth in Section 7.
7.0 PAYMENT. For each Service, Customer shall pay ZEZEL the contracted price that includes all recurring and non-recurring charges, fees and taxes, (collectively the “Service Charges”) as set forth on the Service Order in accordance with the following payment terms: Service Charges shall be billed to Customer on an annual basis commencing upon acceptance of order, and are payable at the time of the order. Customer must bring any billing error to ZEZEL’s attention within five (5) days after the date appearing on the applicable invoice or Customer waives its right to a refund or credit associated with such billing error. ZEZEL shall not defer any charges while Customer awaits reimbursement, subsidy, discount or credit from any third party or government entity, and Customer shall have the obligation to pay all charges regardless of the status of any such reimbursement, subsidy, discount or credit. ZEZEL shall have the right to increase Service Charges for each Service after the Initial Order Term for such Service upon thirty (30) days written notice to Customer. ZEZEL may charge a late fee for any amounts which are not paid when due. The late fee shall be the lesser of one and one-half percent (1.5%) per month or the highest rate chargeable by law. Customer shall also be responsible for all costs of collection (including reasonable attorneys’ fees) to collect overdue amounts. If ZEZEL fails to present a charge in a timely manner, such failure shall not constitute a waiver of the charges for the fees to which it relates, and Customer shall pay such invoice in accordance with these payment terms.
8.1 Customer shall pay all federal, state, and local taxes, government fees, charges, surcharges or similar exactions imposed on the Services and/or products that are the subject of the Master Agreement including but not limited to state and local sales and use taxes, telecommunications taxes, federal and state universal service fund fees and/or state and local regulatory fees to the extent applicable, if any. ZEZEL shall have the right to recover from Customer, and Customer shall pay, the amount of any state or local fees, charges or taxes arising as a result of the Master Agreement that are imposed on ZEZEL or ZEZEL’s Services, or measured on ZEZEL’s receipts, and any other costs or expenses that ZEZEL is entitled under applicable law to pass through to or otherwise charge Customer for Customer’s use or receipt of the Services, if any. Such fees or taxes shall be invoiced to Customer in the form of a surcharge included on Customer’s invoice. ZEZEL shall be responsible for and shall pay all taxes measured by ZEZEL’s net income. To the extent that a dispute arises as to which Party is liable for fees or taxes under the Master Agreement, Customer shall bear the burden of proof in showing that the fee or tax is imposed upon ZEZEL’s net income. This burden may be satisfied by Customer producing written documentation from the jurisdiction imposing the fee or tax indicating that the fee or tax is based on ZEZEL’s net income. Customer shall provide ZEZEL any and all documentation substantiating a claim for exemption from taxes or fees prior to the date that Services are first provided under the Master Agreement. To the extent such documentation is held invalid for any reason, Customer shall reimburse ZEZEL for any tax or fee liability including without limitation related interest and penalties arising from such invalid documentation.
8.2 Customer acknowledges that currently, and from time to time, there is uncertainty about the regulatory classification and/or treatment of some of the Services ZEZEL provides and, consequently, uncertainty about what fees, taxes and surcharges are due from ZEZEL and/or its customers. Customer agrees that ZEZEL has the right to determine, in its sole discretion, what fees, taxes and surcharges are due and to collect and remit them to the relevant governmental authorities, and/or to pay and pass them through to Customer. Customer hereby waives any claims it may have regarding ZEZEL’s collection or remittance of such fees, taxes and surcharges. Customer understands that it may obtain a list of the fees, taxes and surcharges that ZEZEL currently collects, or passes through, if any, by writing to ZEZEL
9.0 PROPRIETARY RIGHTS AND CONFIDENTIALITY.
9.1 All materials including, but not limited to, any ZEZEL Equipment (including related firmware), software, data and information provided by ZEZEL, any identifiers or passwords used to access the Service or otherwise provided by ZEZEL, and any know-how, methodologies or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto, used by ZEZEL to provide the Service (collectively “ZEZEL Materials”) shall remain the sole and exclusive property of ZEZEL or its suppliers. Nothing herein is intended to convey any right or ownership interest to Customer or any other person or entity in or to such ZEZEL Materials. Customer shall acquire no interest in the ZEZEL Materials by virtue of the payments provided for under the Master Agreement. Customer may use the ZEZEL Materials solely for Customer’s use of the Service during any applicable Order Term and the same may not be transferred by Customer to any other person, corporation or entity. Customer may not disassemble, decompile, reverse engineer, reproduce, modify or distribute the ZEZEL Materials, in whole or in part, or use them for the benefit of any third party. All rights in the ZEZEL Materials not expressly granted to Customer in the Master Agreement are reserved to ZEZEL. Customer shall not open, alter, misuse, or tamper with the ZEZEL Equipment and shall not remove any markings or labels from the ZEZEL Equipment.
9.2 Customer shall maintain in confidence, and not to disclose to third parties or use, except for such use as is expressly permitted in the Master Agreement, the ZEZEL Materials and any other information and materials provided by ZEZEL in connection with the Master Agreement, that are identified or marked as confidential or are otherwise reasonably understood to be confidential, including but not limited to the content of the Master Agreement.
9.3 Software is provided within the Zezel instruments to the Customer under the Master Agreement, ZEZEL grants Customer a limited, non-exclusive and non-transferable license to use such software, in object code form only, solely for the purpose of using the Service for Customer’s internal business purposes during the Term.
10.0 EQUIPMENT UPGRADES AND MODIFICATIONS. ZEZEL has the right, but not the obligation, to upgrade, modify and enhance the ZEZEL global secure network Equipment (including related firmware) and the Service and take any action that ZEZEL deems appropriate to protect the Service and its facilities. ZEZEL has the right to add to, modify or delete any provision of these Terms and Conditions. ZEZEL shall notify Customer of any material adverse change to these Terms and Conditions or Service descriptions by posting such modified Terms and Conditions or Service description on the ZEZEL web site or by email, or, if applicable, in the appropriate ZEZEL tariff. Upon the effectiveness of any addition, modification or deletion, Customer’s continued use of the Services shall constitute Customer’s consent to such addition, modification or deletion, and agreement to continue to be bound by the Master Agreement. In any event, if ZEZEL modifies the Services or these Terms and Conditions and such modification has a material adverse impact on Customer’s ability to use the Service, Customer may, within the thirty (30) day period following the date of such modification, terminate, without penalty, the Service Order relating to the affected Service.
11.1 Either Party may terminate a Service Order: (a) upon thirty (30) days written notice to the other Party of the other Party’s material breach of the Master Agreement or the applicable Service Order, provided that such material breach is not cured within such thirty (30) day period; (b) immediately, in the event that the other Party liquidates, is adjudicated as bankrupt, makes an assignment for the benefit of creditors, invokes any provision of law for general relief from its debtors, initiates any proceeding seeking general protection from its creditors, or is removed or de-listed from a trading exchange (each a “Bankruptcy Event”); or (c) immediately, in the event that Customer fails to comply with any applicable laws or regulations or the terms of the Master Agreement, upon thirty (30) days written notice ZEZEL may suspend or discontinue any applicable Service in whole or in part without further notice, provided that such failure is not cured within such thirty (30) day period. In addition, ZEZEL may immediately terminate or suspend Customer’s or its End User’s use of the Service if such use is determined by ZEZEL, in its sole discretion, to be resulting in a material degradation of the ZEZEL network, until such time as such degradation has been remedied. In the event of a suspension of Service, ZEZEL may require the payment of reconnect or other charges before restarting the suspended Service.
11.2 Upon the termination or expiration of the Master Agreement (including all Service Orders): (a) ZEZEL’s obligations under the Master Agreement shall cease; (b) Customer shall promptly pay all amounts due and owing to ZEZEL for Service delivered prior to the date of termination or expiration, and any de-installation fees, if any.
11.3 In addition, not withstanding anything to the contrary in the Master Agreement, in the event this Master Agreement or any Service Order hereunder terminates for any reason other than ZEZEL’s material breach or a Bankruptcy Event impacting ZEZEL (as permitted in Sections 11.1(a) or (b)) or as permitted in Section 11.1(c) above, Customer shall, at ZEZEL’s discretion: (a) promptly pay ZEZEL the full amount of the Service Charges that Customer would have been charged for the remainder of the Initial Term or the then-current renewal term; or (b) reimburse ZEZEL for all volume, term or other discounts and credits provided in anticipation of full performance of Customer’s obligations and any unpaid portion of the installation fee set forth in the applicable Service Order(s).
11.4 The provisions of sections 7 – 9, 11 – 15, 17.1, 18, 19, 21 – 23, 25 and 26 and the Attachments shall survive the termination or expiration of the Master Agreement.
12.0 INDEMNIFICATION. Customer shall defend, indemnify and hold harmless ZEZEL, its affiliates, its service providers and suppliers and their respective officers, directors, employees and agents, from and against third party claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys’ and other professionals’ fees, arising out of or relating to: (a) the use of the Service, including but not limited to a breach of Section 5 of these Terms and Conditions; (b) personal injury or property damage caused by the negligence or willful misconduct of Customer or its employees or agents; or (c) any fees, fines or penalties incurred by ZEZEL as a result of Customer’s violation of the 10% Rule as set forth in Attachment D.
13.0 DISCLAIMER OF WARRANTY. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICE AND USES THE SAME AT ITS OWN RISK. ZEZEL EXERCISES NO CONTROL OVER AND HAS NO RESPONSIBILITY WHATSOEVER FOR THE CONTENT TRANSMITTED OR ACCESSIBLE THROUGH THE SERVICE, AND ZEZEL EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR SUCH CONTENT. EXCEPT AS SPECIFICALLY SET FORTH IN THE MASTER AGREEMENT, THE SERVICE, ZEZEL EQUIPMENT AND ZEZEL MATERIALS ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY ZEZEL, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. ZEZEL DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, SECURE, ERROR FREE, WITHOUT DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATE OR INFORMATION OR THAT ANY MINIMUM TRANSMISSION SPEED IS GUARANTEED AT ANY TIME. EXCEPT AS SET FORTH IN THE MASTER AGREEMENT, ZEZEL DOES NOT WARRANT THAT ANY SERVICE OR EQUIPMENT PROVIDED BY ZEZEL SHALL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR THROUGHPUT RATE. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT TRANSMISSIONS OVER THE SERVICE MAY NOT BE TOTALLY SECURE UNLESS BOTH PARTIES ARE USING ZEZEL. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT ANY DATA, MATERIAL OR TRAFFIC OF ANY KIND WHATSOEVER CARRIED, UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S OR AN END USER’S EQUIPMENT OR LOSS OF SUCH DATA, MATERIAL OR TRAFFIC DURING, OR THAT RESULTS FROM, CUSTOMER’S OR ITS END USERS’ USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S OR END USERS’ SENDING OR RECEIVING, OR UPLOADING OR DOWNLOADING, OR ATTEMPTS TO DO SAME, OF SUCH DATA, MATERIAL OR TRAFFIC. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT ZEZEL’S THIRD PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER UNDER THE MASTER AGREEMENT AND ZEZEL DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS UNDER THE MASTER AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY OR QUIET ENJOYMENT.
14.0 LIMITATION OF LIABILITY. IN NO EVENT SHALL ZEZEL BE LIABLE TO CUSTOMER, AN END USER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MASTER AGREEMENT, REGARDLESS OF WHETHER ZEZEL HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ZEZEL’S AGGREGATE LIABILITY FOR ANY REASON AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE MASTER AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT PRODUCT LIABILITY)) SHALL BE LIMITED TO THE FEES PAID OR OWED BY CUSTOMER UNDER THE SERVICE ORDER THAT IS THE SUBJECT MATTER OF THE CLAIM IN THE SIX (6) MONTHS PRECEDING THE DATE THE CLAIM ARISES. IN NO EVENT SHALL ZEZEL’S AFFILIATES, THIRD PARTY SERVICE PROVIDERS OR SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER UNDER THE MASTER AGREEMENT. ZEZEL SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF THE UNAVAILABILITY OF THE SERVICE, INCLUDING THE INABILITY TO REACH 911 OR OTHER EMERGENCY SERVICES, THE INABILITY TO CONTACT A SECURITY SYSTEM OR REMOTE MEDICAL OR OTHER MONITORING SERVICE PROVIDER OR ANY FAILURE OR FAULT RELATING TO CUSTOMER-PROVIDED EQUIPMENT, FACILITIES OR SERVICES.
16.0 FORCE MAJEURE. Notwithstanding anything to the contrary in the Master Agreement, a Party shall have no liability to the other due to circumstances beyond its control, including, but not limited to, acts of God, terrorism, flood, fiber cuts, natural disaster, regulation or governmental acts, fire, civil disturbance, weather, or any unauthorized access to or destruction or modification of the Service, in whole or in part (each a “Force Majeure Event”). Notwithstanding anything to the contrary in the Master Agreement, Customer may terminate the affected Service Order(s) in its entirety and without penalty if a Force Majeure Event continues for more than thirty (30) consecutive days and prevents ZEZEL from delivering the Service under such Service Order(s).
17.0 REGULATORY AND LEGAL CHANGES, POLE ATTACHMENT AND CONDUIT CHARGES, TARIFFS.
17.1 In the event of any change in applicable law, regulation, decision, rule or order, including without limitation any new application of or increase in any government- or quasi-government-imposed fees or charges that increases the costs or other terms of ZEZEL’s delivery of Service to Customer, the Customer acknowledges and agrees that ZEZEL may pass through to Customer any such increased fees or costs, but only to the extent of the actual increase, provided ZEZEL notifies Customer at least thirty (30) days in advance of the increase. In such case, and if such increase materially increases the fees or charges due by Customer under the Master Agreement for the applicable Service, Customer may, within thirty (30) days after notification of such increase, terminate the affected Service without incurring termination liability, provided Customer notifies ZEZEL at least fifteen (15) days in advance of Customer’s requested termination date. In addition, if ZEZEL determines that offering or providing the Service, or any part thereof, has become impracticable for legal or regulatory reasons or circumstances, then ZEZEL may terminate the Master Agreement and any affected Service Orders without liability, by giving Customer thirty (30) days prior written notice or any such notice as is required by law or regulation applicable to such determination.
17.2 The Master Agreement, including the Attachments and the Service Order(s), are subject to all applicable federal, state or local laws and regulations in effect in the relevant jurisdiction(s) in which ZEZEL provides the Services. If any provision of the Master Agreement, the Attachments, or the Service Order(s) contravene or are in conflict with any such law or regulation, then the terms of such law or regulation shall take priority over the relevant provision of the Master Agreement, the Attachments, and/or the Service Order(s). If the relevant law or regulation applies to some but not all of the Service(s) being provided under the Master Agreement, then such law or regulation shall take priority over the relevant provision of the Master Agreement, the Attachments, and the Service Order(s) only for purposes of those Service(s) to which the law or regulation applies. Except as explicitly stated in the Master Agreement, nothing contained in the Master Agreement shall constitute a waiver by ZEZEL of any rights under applicable laws or regulations pertaining to the installation, operation, maintenance or removal of the Services, facilities or equipment.
18.0 ENTIRE AGREEMENT The Master Agreement, including without limitation all Attachments, sets forth the entire service agreement between the Parties with respect to the subject matter hereof and supersedes all previous written or oral agreements or representations between the Parties with respect to such subject matter.
19.0 ORDER OF PRECEDENCE Each Service shall be provisioned pursuant to the terms and conditions of the Master Agreement. In the event that ZEZEL permits a Customer to use its own standard purchase order form to order the Service, the Parties hereby acknowledge and agree that the terms and conditions hereof shall prevail notwithstanding any variance with the terms and conditions of any purchase order submitted by Customer, and any different or additional terms contained in such purchase order shall have no force or effect. To the extent that the terms of any Service Agreement or Service Order are inconsistent with the terms of these Terms and Conditions, the terms of the Service Agreement then the terms of the Service Order shall control.
20.0 COMPLIANCE WITH LAWS As between the Parties, ZEZEL shall obtain and maintain at its own expense all licenses, approvals and regulatory authority required by law with respect to ZEZEL’s operation and provision of the Services as contemplated in the Master Agreement, and Customer shall obtain and maintain at its own expense all licenses, approvals and regulatory authority required by law with respect to Customer’s use of the Services as contemplated in the Master Agreement. Unless specified otherwise in the Master Agreement, each Party shall give all notices, pay all fees and comply with all laws, ordinances, rules and regulations relating to its performance obligations specified in the Master Agreement.
21.0 ARBITRATION EXCEPT FOR CLAIMS FOR INJUNCTIVE RELIEF, AS DESCRIBED BELOW, ANY PAST, PRESENT, OR FUTURE CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THE MASTER AGREEMENT SHALL BE BROUGHT IN THE CITY OF LOS ANGELES, CALIFORNIA AND SHALL BE RESOLVED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, INCLUDING, IF APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR THE RESOLUTION OF CONSUMER RELATED DISPUTES. CONSOLIDATED OR CLASS ACTION ARBITRATIONS SHALL NOT BE PERMITTED. THE ARBITRATOR OF ANY DISPUTE OR CLAIM BROUGHT UNDER OR IN CONNECTION WITH THE MASTER AGREEMENT SHALL NOT HAVE THE POWER TO AWARD INJUNCTIVE RELIEF; INJUNCTIVE RELIEF MAY BE SOUGHT SOLELY IN AN APPROPRIATE COURT OF LAW. NO CLAIM SUBJECT TO ARBITRATION UNDER THE MASTER AGREEMENT MAY BE COMBINED WITH A CLAIM SUBJECT TO RESOLUTION BEFORE A COURT OF LAW. THE ARBITRABILITY OF DISPUTES SHALL BE DETERMINED BY THE ARBITRATOR. JUDGMENT UPON AN AWARD MAY BE ENTERED IN ANY COURT HAVING COMPETENT JURISDICTION. IF ANY PORTION OF THIS SECTION IS HELD TO BE UNENFORCEABLE, THE REMAINDER SHALL CONTINUE TO BE ENFORCEABLE.
22.0 GOVERNING LAW; JURISDICTION; CLAIMS The interpretation, validity and enforcement of the Master Agreement, and all legal actions brought under or in connection with the subject matter of the Master Agreement, shall be governed by the law of the State of California. Any claim that Customer wishes to assert under the Master Agreement must be initiated not later than six (6) months after the claim arose.
23.0SEVERABILITY; WAIVER In the event that any portion of the Master Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties set forth in the Master Agreement and the remainder of the Master Agreement shall remain in full force and effect. No waiver of any breach or default under the Master Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default. To be legally binding on ZEZEL, any waiver must be in writing.
24.0 ASSIGNMENT Customer may not assign the Master Agreement without the prior written consent of ZEZEL, and any assignment in violation of this Section shall be null and void. ZEZEL may assign its rights and obligations under the Master Agreement including, without limitation, in whole or in part, to any affiliate without the prior written approval of or notice to Customer. Customer understands and agrees that, regardless of any such assignment, the rights and obligations of ZEZEL in the Master Agreement may accrue to, or be fulfilled by, any affiliate, as well as by ZEZEL and/or its subcontractors.
25.0 PUBLICITY Customer may not issue a press release, public announcement or other public statements regarding the Master Agreement without ZEZEL’s prior written consent.
26.0 NO THIRD PARTY BENEFICIARIES; RELATIONSHIP OF THE PARTIES There are no third party beneficiaries to the Master Agreement. The Parties to the Master Agreement are independent contractors.
27.0 ZEZEL.COM Customer agrees that all of its use of the Zezel.com website shall comply with the Term of Use updated by ZEZEL from time to time.
28.0 NOTICES Any notice under the Master Agreement shall be given in writing and shall be deemed to have been given when actually received by the other Party. Notices shall be delivered to Customer and ZEZEL at the respective addresses set forth in the agreement, or to such other address as is provided by one Party to the other in writing.
29.0 COUNTERPARTS The Master Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. .