By clicking ‘accept,’ or accessing or using ZipAlert, You agree to the terms in this TOU (“Acceptance”). If You do not have authority enter into this TOU, or if You do not agree with its terms, do not click ‘accept’ and do not use ZipAlert. For the purposes of these TOU, (i) MSKILLED and You shall sometimes be individually referred to as “Party” and collectively as “Parties”; (ii) all references to either Party shall be deemed to include their respective successors, assigns, heirs or legal representatives; and (iii) all capitalized terms shall have the meaning given to them in the definitions below.
1.1 Acceptable Use. You may use ZipAlert during the applicable Term for Your internal business purposes only, and in accordance with your Order, these TOU and Documentation. You are responsible for the accuracy, quality and legality of Your Customer Data, the means by which You acquired Your Customer Data and Your use of Your Customer Data with ZipAlert.
You agree not to misuse the ZipAlert Service. For example, you must not, and must not attempt to do the following things:
1.2 Authorized Users. Users may submit Customer Data to ZipAlert, such as messages or files. MSKILLED does not endorse and has no control over what Your Users submit through ZipAlert. You are responsible for all content and Customer Data submitted to, or created in ZipAlert. You will inform Your Users of Your policies and practices that are relevant to their use of ZipAlert and of any settings that may impact the processing of Customer Data.
1.3 Your account must be accurate and up-to-date. You represent that all account information You provide is accurate and will be kept up-to-date. In addition, You will use reasonable means to protect Your account information, passwords and other login credentials for ZipAlert, and promptly notify MSKILLED of any known unauthorized use of or access to Your account.
MSKILLED may enhance and refine the Service provided MSKILLED does not materially reduce its functionality. From time to time, MSKILLED will perform scheduled maintenance to update the servers and software that are used to provide You with ZipAlert. You acknowledge that MSKILLED may, in certain situations, need to perform emergency maintenance of ZipAlert without providing advance notice to You.
Your subscription to ZipAlert is effective from the date that MSKILLED notifies You that ZipAlert has been provisioned and shall remain in force for a period of 1 month and shall then be auto-renewed for another 1 month unless terminated by you.
You have the option of purchasing a subscription to the Service. Subscriptions are sized and priced at the discretion of MSKILLED and may change from time to time. To initiate a subscription you must enter a valid debit or credit card. When you confirm your subscription on MSKILLED, you agree to be bound by and pay for that purchase.
Following the end of your subscription period (typically one month, three months or twelve months, as determined by you), your subscription will automatically renew at the same payment terms. You may upgrade your subscription at any time through the self-serve functions in your account dashboard. When you upgrade your subscription, you are invoiced at the price of your new subscription level. The unused, prorated amount of your old subscription and your new subscription will be debited against your account in the next billing cycle.
You may downgrade your subscription at any time; the downgrade will take effect at the start of your next billing cycle. You may cancel your subscription at any time; your cancellation will take effect at the end of your current billing cycle. No refunds will be provided for portions of the current billing cycle following a downgrade or cancellation.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
If you believe that MSKILLED has charged you in error, you must contact MSKILLED within 90 days of such charge. No refunds will be given for any charges, which are more than 90 days old
If you pay by debit card and your payment results in an overdraft or other fee from your bank, you alone are responsible for that fee. If your subscription is cancelled, MSKILLED will maintain all resources that were generated by your subscription. MSKILLED retains the right to delete any sources generated by a subscription that have not been updated within 90 days.
If a party materially breaches this TOU and does not cure that breach within ten (10) days after receipt of written notice of the breach, the non-breaching party may terminate the applicable subscription to ZipAlert for cause. Upon termination or expiration of Your subscription, Your access to ZipAlert will cease. Upon any termination by You for MSKILLED’s material breach of this TOU, MSKILLED will refund You any prepaid fees covering the remainder of the then-current term after the effective date of termination. Upon any termination by MSKILLED for Your material breach of this TOU, You will pay any unpaid fees covering the remainder of the then-current term.
6.1. You retain all right, title and interest in and to your Customer Data. MSKILLED shall have the right to (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use information provided by You to create and generate other reports and analyses, and for research, presentation and development purposes (Sections 6.1 (i) and (ii) are collectively referred to as “Analysis”).
6.2. MSKILLED and its licensors retain ownership in all intellectual property rights to ZipAlert and its underlying technology, software, patents, know-how and associated documentation, in whole or in part, including all improvements, enhancements, modifications, and derivative works (together, “Materials”). MSKILLED reserves all rights to the ZipAlert Service, software and Materials that are not expressly granted under this TOU.
6.3. You may from time to time, provide MSKILLED with voluntary feedback, comments, suggestions or ideas regarding ZipAlert (“Feedback”). You grant MSKILLED a non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, worldwide license under Your intellectual property in the Feedback to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit without restriction of any kind all such Feedback as MSKILLED sees fit. Feedback will not create any confidentiality obligation unless the Parties mutually agree otherwise in writing. The other party is under no obligation to implement any Feedback it may receive from such party.
7.1. You agree and undertake to co-operate and provide all reasonable assistance, information, and documents to MSKILLED from time to time as may be reasonably required to enable MSKILLED to satisfactorily perform the Services under this TOU.
7.2. You will obtain all approvals and consents necessary under the law of the jurisdiction(s) in which You use the Service to allow for the collection, processing, and cross-border transmission of data in connection with the Service. This obligation includes, but is not limited to, obtaining approvals from regulatory authorities when required and obtaining consent when required from Your customers, employees and representatives, and others from whom data is obtained in connection with Your use of the Service.
7.3. You are solely responsible for the content of communications transmitted by You and/or customers of You using ZipAlert.
7.4. You will maintain at Your sole cost and expense all Devices necessary to access our Platform.
7.5. You are responsible for establishing designated points of contact to interface with ZipAlert. You shall implement security procedures necessary to limit access to the Services to Your authorized Users.
7.6. You will refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to ZipAlert. ZipAlert will be used by You only for Your internal business purposes, shall not be reproduced or copied in whole or in part, and shall not be removed/deleted from the Devices on which ZipAlert is installed (unless such removal/deletion is pursuant to termination of the applicable subscription to ZipAlert).
7.7. You are solely responsible for (i) procuring and maintaining Your network connections and telecommunications links from Your systems to MSKILLED’s systems, and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.
7.8.1 You understand that all content that you input, post, transmit, stream or upload to the Service are your sole responsibility. This means that you, and not MSKILLED, are entirely responsible for all data that you input, upload, post, stream, transmit or otherwise make available via your account. MSKILLED does not control the data analyzed or modeled via the Service and, as such, does not guarantee the accuracy, integrity or quality of such data. 7.8.2 To use the Service, you must be the owner, have the rights to use the data, or use public data for all data sources that you create within MSKILLED. Your data sources cannot be obtained by fraud, involve the use of counterfeit or stolen data, or have been obtained by other unlawful or morally repugnant method.
7.8.3 Your data sources cannot infringe any third party's copyright, patent, trade mark, trade secret or other proprietary rights or privacy laws. Your data sources cannot violate any law, statute, ordinance or regulation (including without limitation those governing export control or consumer protection).
7.8.4 Your data sources cannot create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers.
8.1. Mutual Representations and Warranties Each Party represents and warrants that it:
a) Has lawful authority and capacity to enter into this TOU and is a company validly existing and in good standing under the laws of the country of its registration; b) It holds all licenses, approvals and permits required by law to conduct its business;
You warrant that You will not use ZipAlert in a manner that: (a) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (b) will disrupt a third parties’ similar use; (c) violates the intellectual property rights of any third party; or (d) violates or tampers with the security of ZipAlert. If MSKILLED has reasonable grounds to believe that You are utilizing ZipAlert for any such illegal or disruptive purposes, MSKILLED shall be entitled to suspend ZipAlert immediately with or without notice to You.
Except as set forth in Section 8.1 above, MSKILLED hereby explicitly and specifically disclaims any and all warranties, whether written, oral, expressed or implied including, without limiting the foregoing, any warranty of merchantability or fitness for a particular purpose or non-infringement. MSKILLED disclaims that: (a) ZipAlert will be performed error-free or uninterrupted, or that MSKILLED will correct all ZipAlert errors, (b) ZipAlert will operate in combination with Your Devices, or with any other hardware, software, systems or data not provided by MSKILLED, (c) ZipAlert will meet Your requirements, specifications or expectations, or (d) any third party content is reliable, accurate, complete, correct, or useful, and specifically disclaims all liability arising from or related to third party content.
YOU ACKNOWLEDGE THAT MSKILLED DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNIMSKILLEDIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNIMSKILLEDIONS FACILITIES (COLLECTIVELY “DELAYS”). MSKILLED IS NOT RESPONSIBLE FOR (A) ANY SUCH DELAYS, (B) ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF ZIPALERT THAT ARISE FROM YOUR CONTENT, APPLICATIONS OR THIRD-PARTY CONTENT, OR (C) ANY DAMAGES CAUSED BY THIRD PARTIES, INCLUDING INTERRUPTION TO THE CONNECTIVITY TO OUR SERVICES, THIRD PARTY HARDWARE, SOFTWARE OR TOOLS. EXCEPT FOR ANY AMOUNTS DUE TO MSKILLED FOR THE SERVICE, EITHER PARTY’S LIABILITY FOR CLAIMS RELATED TO, OR ARISING OUT OF, THIS TOU OR THE SERVICE SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO MSKILLED FOR THE SERVICE IN THE ONE (1) MONTH PRECEDING THE LAST EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR (I) INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES; (II) LOSS OR CORRUPTION OF DATA OR INTERRUPTED OR LOSS OF BUSINESS; OR (III) LOSS OF REVENUES, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE CLAIMS ARE IN WARRANTY, CONTRACT, TORT, INFRINGEMENT, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS SECTION 7.4 LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
You agree to defend, indemnify and hold harmless MSKILLED and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from your use of and access to the Service, including any data or content transmitted or received by you, any other party’s access or use of the Service with your username and password, or your violation of these Terms, applicable law, rule or regulation.
The parties will protect each other’s Confidential Information. Your Confidential Information includes Your Customer Data. The party receiving Confidential Information will exercise at least the same degree of care that it uses to protect its own Confidential Information of a similar nature, but in no event less than reasonable care to (a) restrict dissemination of Confidential Information only to individuals or third parties with a need to know and who are under a substantially similar duty of confidentiality, and (b) not use any Confidential Information for any purpose other than to perform its obligations under this TOU. The receiving party’s obligations will not apply to information that (i) is rightfully in its possession prior to receipt from the disclosing party, (ii) is or becomes publicly available other than as a result of a breach of this TOU, (iii) is rightfully obtained by the receiving party from a third party under no obligation of confidentiality with respect to the information, or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent required by law or regulation.
9.3. Survival. The following sections survive the expiration or termination of Your Subscription: Sections 8 (Representations and Warranties),9.1 (Indemnification), 9.2 (Confidentiality), 9.4 (Governing law and Dispute Resolution), and 8.4 (Limitation of Liability).
9.4 Governing Law and Dispute Resolution. The TOU, and any disputes arising out of or related hereto, will be governed exclusively by the applicable governing law below, based on Your primary place of business and without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in the applicable venue below will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the TOU or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Regardless of the below governing law, either of us may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of our intellectual property or proprietary rights.
|Your Primary Place of Business||Governing Law|
|United States, Latin America or the Caribbean||State of Delaware, United
States of America
|All other countries or territories||High Courts of Kolkata, India|
*Where the governing law is the laws of England, no person who is not a party to this Agreement shall be entitled to enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act 1999.
9.5. Amendment. The TOU may be amended, modified, superseded, or cancelled, and the same shall be updated online. You undertake to check and verify such amendments on a periodical basis during the Term of this TOU. Any material changes to the TOU are not retroactive and will only apply to future orders. Your use of Services after the date of such amended terms shall be deemed to constitute acceptance of such amended terms.
9.6. Assignment. No right or obligation under this TOU may be assigned, resold, sub-licensed, and/or transferred by You (by operation of law or otherwise) without the prior written consent of MSKILLED. MSKILLED shall have the right to assign all or part of this TOU to Affiliates without Your approval.
9.7. Force Majeure. Except for payment obligations, neither of us will be responsible for failure of performance due to a Force Majeure Event.
9.8. Notification. MSKILLED may provide You with notice via email, regular mail and/or postings on the website or any other website used as part of the Service. Notices to MSKILLED should be sent to: MSKILLED INFOTECH LLP, AB 65, Prafullakannan, Keshtopur, Kolkata, 700101
“Administrative Data” means data related to Your employees or representatives to administer or manage Your use of the Service.
“Affiliates” means any entity directly or indirectly controlling or controlled by or in common control with a party, where “control” is defined as the ownership of at least 50% of the equity or beneficial interests of such entity or the right to vote for or appoint a majority of the board of directors or other governing body of such entity.
“Confidential Information” means non-public confidential or proprietary information of the disclosing party that is clearly marked confidential or should be reasonably assumed as confidential given the nature of the information and the circumstances of disclosure.
“Customer Data” means all information and data that You or anyone acting on Your behalf provides or transfers to MSKILLED in connection with Your use of the Service. Customer Data includes Administrative Data but does not include Telemetry Data. “Device” means a channel, PC, computer, smartphone or other device, usually electronic that processes data according to a set of instructions.
“Force Majeure Event” means an event beyond the affected party’s reasonable control, including accidents, severe weather events, act of God, actions of any government agency, epidemic, pandemic, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
“Telemetry Data” means information generated by instrumentation and logging systems created through the use and operation of ZipAlert.
“Upgrade” means new versions of, and updates to, the Services, whether for the purpose of fixing an error, bug or other issue in the Services or enhancing the functionality of ZipAlert.
“You” or “Your” means the individual or legal entity purchasing the ZipAlert.
“User” means an individual authorized by You to have access to ZipAlert and its related dashboards