ACCESS TO AND USE OF THIS WEBSITE
You may cite or refer to the information on the Website in books, online services, or other media but, except as provided below, you may not reproduce or distribute such information in whole or in part without the prior written permission of Zahara.
You may not reproduce or distribute any content (whether text or image) from the Website without securing the advance written consent of Zahara. To request such permission, please use the Contact form provided, including your name, address, a description of the purpose of your intended distribution and the information you would like to distribute.
You may print, reproduce, and use the information in the Website provided such use is for non-commercial educational purposes only (or which is otherwise permitted under the Copyright Act 1968), provided that you (i) do not modify such information, and (ii) include any copyright notice originally included with such information and this notice in all such copies.
In accessing any part of this Website, you agree not to:
• use this Website in such a way that disrupts, interferes with or restricts the use of this Website by other users;
• upload, display or transmit any materials through this Website which are false, offensive, defamatory, threatening, obscene, unlawful or which infringe the rights of any other person anywhere in the world;
• reverse engineer, decompile, copy or adapt any software or other code or scripts forming part of this Website; and
• change, modify, delete, interfere with or misuse data contained on this Website and entered by or relating to any third-party user of this Website.
You must not misuse the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorized access to the Website, the server on which the Website is stored, or any server, computer or database connected to the Website. You must not attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
Zahara will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Website or to your downloading of any material posted on it, or on any Website linked to it. You should ensure that you have appropriate protection against viruses and other security arrangements in place whilst using the Internet.
You may link to the home page of this Website, provided you do so in a way that does not damage Zahara’s reputation or take advantage of it, or which is otherwise in any way detrimental to the Website or Zahara. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on Zahara’s part where none exists.
You must not establish a link to the Website from any website that is not owned by you.
Links from this Website are provided for information and convenience only and Zahara has no control over and cannot therefore accept responsibility or liability for the content of any linked third-party website or for any loss or damage that may arise from your use of them.
The Website must not be framed on any other site, nor may you create a link to any part of the Website other than the home page. Zahara reserves the right to withdraw linking permission without notice.
TRANSACTIONS CONCLUDED THROUGH THE WEBSITE
Contracts for the supply of goods, services or information entered into through this Website will be subject to Zahara’s standard terms and conditions of sale/supply which can be provided on request.
The material displayed on the Website is provided on an ‘as is’ basis, without any guarantees, conditions or warranties as to its accuracy, quality, content, completeness, or adequacy and is subject to change without notice.
To the extent permitted by law, Zahara and any third parties connected to us hereby expressly exclude:
• All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity.
• Any liability for any direct, indirect or consequential loss or damage incurred by any user in connection with the Website, any websites linked to it or from it and any materials posted on it including but not limited to any one or more of the following:
• Loss of income or revenue;
• Loss of business;
• Loss of profits or contracts;
• Loss of prospective economic advantage;
• Loss of anticipated savings;
• Loss of data;
• Loss of goodwill;
• Wasted management or office time; and
• Whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, provided that this condition shall not prevent claims for loss of or damage to your tangible property or any other claims for direct financial loss that are not excluded by any of the categories set out above.
This does not affect Zahara’s liability for death or personal injury arising from any negligence of Zahara or any of our employees, nor our liability for fraudulent misrepresentation or misrepresentation as to a fundamental matter, nor any other liability which cannot be excluded or limited under applicable law.
INTELLECTUAL PROPERY RIGHTS
Unless otherwise indicated, material contained on the Website is copyright © Zahara Companies Pty. Ltd. 2012 – 2020. Zahara owns all intellectual property rights in the ‘Zahara’ name/logo and all technical infrastructure relating to the Website. Where used, third-party trademarks remain the copyright property of their respective owners.
ABOUT THIS POLICY
This website is operated by Zahara Companies Pty. Ltd. and the Zahara group of companies (“Zahara” or “we”). Zahara and its associated companies will use the information we collect from you in accordance with this policy.
This policy describes how we use your personal data when you use our website (https://www.zaharacompanies.com). We have provided this policy to ensure that individuals who use our website understand what personal data we may collect and hold about them, what we may use it for and how we keep it safe. You have legal rights to access the personal data that we hold about you and to control how we use it which are also explained in this policy.
You can read, print and save this whole policy or click on the links below to see specific information about:
Who we are and how you can contact us
What personal data we collect about you
What we use your personal data for
When we need your consent to use your personal data
Personal data you are legally obliged to provide
Your rights to know what personal data we hold and to control how we use it
Automated decision making and profiling
When we will share your personal data with others
How we keep your personal data safe
How we use your personal data for marketing
When we will send your personal data to other countries
How long we keep your personal data
How you can make a complaint
How we keep this policy up to date
For general queries about our website please use the “Contact Us” form at https://www.zaharacompanies.com/Contact/.
To update your marketing preferences or unsubscribe from our mailing list please email firstname.lastname@example.org.
For data protection related queries including questions about use of your personal data please email email@example.com.
Please refer to the sections on Your rights to know what personal data we hold and to control how we use it and How to make a complaint for further contact information.
What personal data we collect about you
• Personal data that you provide to us. There are a few different ways in which you may share your personal data with us via our website. You might complete the ‘Contact Us’ Form on our website, subscribe to or comment on our blog, register for one of our events, request content or enroll on “Zahara Knowledge” cloud-based training. The personal data that you provide to us may include your name, address, e-mail address, employer, job role and phone number.
• Personal data that we receive from third parties. If we work with other businesses these parties may collect personal data about you which they will share with us. For example, we may have your name and contact details passed on to us by third parties that we work with, such as marketing partners, industry publications or content syndication partners, that refer you to us so that we can provide you with information on our products or services that we feel would be of interest to you.
• Personal data about your use of our website. This is technical information and includes details such as your IP address, your login information (where applicable e.g. with “Zahara Knowledge”), browser type and version, time zone setting, browser plug-in types and versions, operating system and platform, as well as details of how you navigated our website, what pages you viewed or searched for, page response times, download errors, length of visits to certain pages, page interaction information (such as scrolling, clicks, and mouse-overs), and any phone number used to call our customer service number.
What we use your personal data for
We use your personal data in the following ways:
• Personal data that you provide to us is used to:
• provide you with the information, products and services that you request from us;
• provide you with marketing information in accordance with your marketing preferences (see How we use your personal data for marketing for further details);
• manage and administer our business;
• review and improve our products and services.
• Personal data that we receive from third parties is combined with the personal data that you provide to us and used for the purposes described above.
• Personal data about your use of our website is used to:
• administer our website and for internal operations, including troubleshooting, data analysis, testing, research, statistical and survey purposes;
• to make suggestions and recommendations to you or other website users about products or services that may interest you or them where you have confirmed that you would like to be contacted in this regard;
• to improve our website to ensure that content is presented in the most effective manner for you and for your computer or mobile device;
• to allow you to participate in interactive features of our service, when you choose to do so;
• as part of our efforts to keep our site safe and secure;
• to measure or understand the effectiveness of advertising we serve to you and others, and to deliver relevant advertising to you.
When we need your consent to use your personal data
Whilst we always want you to be aware of how we are using your personal data, this does not necessarily mean that we are required to ask for your consent before we can use it. In the day to day running of our business we may use your personal data without asking for your consent because:
• we are entering into and carrying out our obligations under a contract with you;
• we need to use your personal data for our own legitimate purposes (such as the administration and management of our business and the improvement of our services) and our doing so will not interfere with your privacy rights.
If we require your consent to process your personal data and, as may be the case, in exceptional circumstances, wish to use your personal data for a different purpose than the one for which it was originally collected we will contact you to explain how we wish to use your data and obtain your consent to use your personal data for the relevant purposes as required. You are not required to give consent just because we ask for it. If you do give consent you can change your mind and withdraw it at a later date.
Please refer to the section on How we use your personal data for marketing for further information on our marketing practices in this regard.
Personal data you are legally obliged to provide
You are not under a legal obligation to provide us with any of your personal data but please note that if you elect not to provide us with your personal data, we may be unable to provide our products or services to you.
Your rights to know what personal data we hold and to control how we use it
You have a legal right to know what personal data we hold about you – this is called the right of subject access. You can exercise this right by sending us a written request at any time. Please mark your letter “Subject Access Request” and send an email using the following contact details:
You also have rights to:
• Prevent your personal data being used for marketing purposes (see How we use your personal data for marketing for further details);
• Have inaccurate personal data corrected, blocked or erased;
• Object to decisions being made about you by automated means or to your personal data being used for profiling purposes;
• Object to our using your personal data in ways that are likely to cause you damage or distress;
• Restrict our use of your personal data;
• Require that we delete your personal data;
• Require that we provide you, or anyone that you nominate, with a copy of any personal data you have given us in a structured electronic form such as a CSV file.
How we use your personal data for marketing
We will add your details to our marketing database if:
• You make an enquiry about our products or services;
• You attend an industry related event;
• You buy our products or services;
• You have told a third party that you would like them to pass us your contact details so that we can send you updates about our products or services;
• You have registered an account on our website and have indicated during the sign up process that you are happy to receive marketing communications.
We may send you marketing communications by email, telephone or post.
You can ask us to only send you marketing communications by particular methods (for example, you may be happy to receive emails from us but not telephone calls), about specific subjects (for example about specific portfolio areas or industry specific information) or you may ask us not to send you any marketing communications at all.
We may ask you to indicate your marketing preferences when you first register an account on our website. You can check and update your current marketing preferences at any time by emailing us at firstname.lastname@example.org.
We will not share your personal data with third parties for marketing purposes.
Automated decision making and profiling
If you confirm that you would like to be contacted with further information regarding our products and services, we will add your details to our marketing database and a profile regarding your interaction with our website and content will be created.
Once you are added to our marketing database, we will update your profile with information regarding your interaction with our website, online portals (including social media) and regarding which products or services you have shown a particular interest. Further interactions with our website will then be linked to this account so we can better tailor our correspondences with the interest that you have shown in Zahara and our products and services and provide further information on products and services that are likely to be of interest to you.
This information is used to assess your profile objectively to consider whether you might be interested in purchasing new or further Zahara products and/or services. If we think this is likely, a member of the Zahara team will contact you to take things forward in this regard.
You are entitled to ask that we do not make automated decisions about you or use your personal data for profiling purposes. Please refer to the section on Your rights to know what personal data we hold and to control how we use it for further details in this regard.
When we will share your personal data with others
We share your data with the following people in the day to day running our business:
• Other companies that are part of the Zahara Group of Companies;
• Business partners, suppliers and sub-contractors we work with to provide you with products or services that you have requested from us;
• Analytics and search engine providers that assist us in the improvement and optimization of our site.
We may also share your personal information with third parties on a one-off basis, for example, if:
• We sell or buy any business or assets (including our own), in which case we will disclose your personal data to the prospective seller or buyer of such business or assets;
How we keep your personal data safe
We take every care to ensure that your personal data is kept secure. The security measures we take include:
• Only storing your personal data on our secure servers;
• Ensuring that our staff receive regular data security awareness training
• Keeping paper records to a minimum and ensuring that those which we do have, are stored in locked filing cabinets on our office premises;
• Maintaining up to date system security features to minimize the risk of unauthorized access to our systems.
Please remember that you are responsible for keeping your passwords secure. If we have given you (or you have chosen) a password which enables you to access certain parts of our website, you are responsible for keeping this password confidential. Please do not to share your passwords with anyone.
Sending information via the internet is not always secure. While we do our best to protect your personal data, we cannot always guarantee the security of data sent to our website. In this regard, please note that you send us personal data at your own risk. We will nonetheless use strict procedures and security features (some of which are described above) to try to prevent unauthorized access.
When we will send your personal data to other countries
How long we keep your personal data
We only keep your personal data for as long as we actually need it. This would be considered from the perspective of whether or not you would still be interested in receiving information from us about our products and services. Generally, this means that if you have not replied to our marketing emails or purchased any of our products or services for a period of two years, we will remove you from our database.
For further details please contact us at email@example.com.
Please note that we may anonymize your personal data or use it for statistical purposes. We keep anonymized and statistical data indefinitely, but we take care to ensure that such data can no longer be identify or be connected to any individual.
How you can make a complaint
If you are unhappy with the way we have used your personal data please contact us to discuss this using firstname.lastname@example.org.
How we keep this policy up to date
We will review and update this policy from time to time. This may be to reflect a change in the products or services we offer or to our internal procedures or it may be to reflect a change in the law.
The easiest way to check for updates is by looking for the latest version of this policy on our website or you can contact us (see Who we are and how to contact us) to ask us to send you the latest version of our policy.
Each time we update our policy we will update the policy version number at the end of the policy and the date on which that version of the policy came into force.
This is policy version 2 which came into effect on 22 March 2016.
A cookie is a small file of letters and numbers that we store on your browser or the hard drive of your computer if you agree. Cookies contain information that is transferred to your computer’s hard drive.
We use the following cookies:
• Strictly necessary cookies. These are cookies that are required for the operation of our website. They include, for example, cookies that enable you to log into secure areas of our website.
• Analytical/performance cookies. They allow us to recognize and count the number of visitors and to see how visitors move around our website when they are using it. This helps us to improve the way our website works, for example, by ensuring that users are finding what they are looking for easily.
• Functionality cookies. These are used to recognize you when you return to our website. This enables us to personalize our content for you, greet you by name and remember your preferences (for example, your choice of language or region).
• Targeting cookies. These cookies record your visit to our website, the pages you have visited and the links you have followed. We will use this information to make our website and the advertising displayed on it more relevant to your interests. We may also share this information with third parties for this purpose.
Zahara Cloud Services Agreement
NOTICE: THIS IS A LEGALLY BINDING AGREEMENT BETWEEN THE RECIPIENT OF THE PRODUCTS (THE “CUSTOMER”) AND ZAHARA COMPANIES. PTY. LTD. (“Zahara”). PLEASE READ IT CAREFULLY.
IF YOU CLICK THE “I ACCEPT” BUTTON:
1. YOU AGREE THAT CUSTOMER WILL BE BOUND TO THE TERMS OF THIS CLOUD SERVICES TERMS AND CONDITIONS (THE “AGREEMENT”);
2. YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER; AND
3. YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND AGREED TO THE TERMS OF THIS AGREEMENT. ALTERNATIVELY, BY USING THE PRODUCTS, CUSTOMER AGREES TO BE BOUND BY THESE TERMS.
IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT CLICK “I AGREE” AND DO NOT USE THE PRODUCTS.
CLOUD SERVICES TERMS AND CONDITIONS
These Cloud Services Terms and Conditions (this “Agreement“) is a binding agreement between you (“Customer“) and Zahara Companies Pty. Ltd. (“Zahara“) (collectively, the “Parties” and each, a “Party“).
ZAHARA PROVIDES THE PRODUCTS ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH SUCH TERMS AND CONDITIONS BY CLICKING THE “ACCEPT” BUTTON OR CHECKING THE “ACCEPT” BOX IN THIS AGREEMENT. BY ACCEPTING THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, CUSTOMER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS AND (B) IF CUSTOMER IS A CORPORATION, LIMITED LIABILITY COMPANY, OR OTHER BUSINESS ORGANIZATION, THAT CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH CORPORATION, LIMITED LIABILITY COMPANY, OR OTHER BUSINESS ORGANIZATION. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, CUSTOMER WILL NOT AND DOES NOT HAVE ANY RIGHT TO ACCESS, USE, OR LICENSE THE PRODUCTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO RIGHT TO ACCESS, USE, OR LICENSE THE PRODUCTS IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PRODUCTS THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF SUCH PRODUCTS.
This Agreement consists of the following: (i) the terms and conditions set forth in the Zahara General Terms and Conditions (“GTCs”); (ii) the Cloud Services Addendum; (iii) the SaaS Product Schedule (as applicable) and (iv) the Data Processing Addendum (as applicable); and (v) any Transaction Documents executed by the Parties and entered into in accordance with the GTCs.
ZAHARA GENERAL TERMS AND CONDITIONS
1.1. Definitions. The following capitalized terms used in this Agreement shall have the respective meanings specified below or as otherwise set forth in this Agreement:
“Addenda” means two or more Addendum.
“Addendum” means any of the following: Cloud Services Addendum and Data Processing Addendum (if applicable).
“Affiliates” means, as to any entity, any other entity that, directly or indirectly, Controls, is Controlled by or is under common Control with such entity. To avoid misunderstanding, for Zahara “Affiliates” means any direct or indirect wholly-owned subsidiary of Zahara Companies Pty. Ltd.
“Agreement” has the meaning set forth in the Preamble.
“Zahara” has the meaning set forth in the Preamble.
“Zahara Indemnitees” has the meaning set forth in Section 9.3 (Indemnification by Customer).
“Confidential Information” has the meaning set forth in Section 5.1 (Confidential Information).
“Control” means, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.
“Customer” has the meaning set forth in the Preamble.
“Customer Content” means all software, data (including personal data), information, text, images, audio, video, photographs, non-Zahara or third-party applications, and other content and material, in any format, provided by Customer, any of Customer’s users, or on behalf of Customer that is stored in, or run on or through, the Products.
“Disclosing Party” has the meaning set forth in Section 5.1 (Confidential Information).
“Documentation” has the meaning set forth in the applicable Addenda or Schedules, as applicable and as the context may require.
“Effective Date” means the date that Customer accepts this Agreement by clicking the “Accept” button or checking the “Accept” box.
“Export Control Laws” has the meaning set forth in Section 14.10 (Export Restrictions).
“Force Majeure” has the meaning set forth in Section 14.3 (Force Majeure).
“GTCs” has the meaning set forth in the Preamble.
“Hosting Services” shall mean the hosting of software, by Zahara for Customer pursuant to this Agreement through a cloud infrastructure provided by Zahara.
“Initial Term” has the meaning set forth in Section 10.1 (Term of GTCs).
“Intellectual Property Rights” means any patent rights, copyrights, trademarks, trade secrets, moral rights, and other proprietary or intellectual property rights worldwide.
“OFAC SDN List” has the meaning set forth in Section 14.11 (Sanctions).
“Party” and “Parties” have the meaning set forth in the Preamble.
“Product” means the SaaS Product or Hosting Services, as applicable, that is provided to Customer by Zahara pursuant to a Transaction Document or on an evaluation basis or as a free trial as set forth in Section 2.2.
“Receiving Party” has the meaning set forth in Section 5.1 (Confidential Information).
“Renewal Term” has the meaning set forth in Section 10.1 (Term of GTCs).
“Restricted Person” has the meaning set forth in Section 14.11 (Sanctions).
“SaaS Product” means the subscription-based, hosted software-as-a-service product that is provided to Customer by Zahara.
“Sanctions Laws” has the meaning set forth in Section 14.11 (Sanctions).
“Schedule” means the SaaS Product Schedule specified in an applicable Transaction Document.
“Streamlined Rules” has the meaning set forth in Section 14.12 (Binding Arbitration).
“TD Effective Date” has the meaning set forth in Section 10.2 (Transaction Document Term).
“TD Term” has the meaning set forth in Section 10.2 (Transaction Document Term).
“Term” has the meaning set forth in Section 10.1 (Term of GTCs).
“Third-Party Products” means products (including any software-as-a-service products) and software of a third-party vendor supplied by Zahara or incorporated by Zahara into its Products.
“Transaction Document” means order form entered into by the Parties pursuant to which Zahara provides Products to Customer in accordance with this Agreement.
“$” shall mean lawful money of the Australia.
1.2. References. Except where otherwise specified, all dollar amounts are expressed in Australian dollars (AUD$).
2. USE OF PRODUCTS
2.1. Right to Use. In accordance with the terms of the Agreement, Zahara will deliver and make the Products listed in the Transaction Document available to Customer through Zahara Secure Connect. Customer has the right to use the Products as set forth in the Transaction Document and this Agreement.
2.2. Evaluation of Products and Free Products. If a Product is provided by Zahara on an evaluation basis or as a free trial, then subject to Customer’s compliance with this Agreement, Zahara grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable, limited, revocable right during the applicable evaluation or free trial term to use the Product solely for evaluating whether Customer wishes to purchase a commercial right to access and use such Product. Notwithstanding anything to the contrary in this Agreement, Zahara does not provide maintenance and support, warranties, service levels and applicable credits, indemnification, with respect to such Products.
2.3. Transaction Documents. Customer may purchase Products from time to time by entering into Transaction Documents. Each Transaction Document will refer to this Agreement. Depending on which Products Customer purchases in the Transaction Documents, Customer may be subject to additional terms included in the Addenda, which are hereby incorporated into and made a part of this Agreement. Customer shall comply with any of the applicable Addenda, as indicated on the relevant Transaction Document.
3. PAYMENT AND INVOICING
3.1. Invoicing. In accordance with the invoicing schedule set forth in the applicable Transaction Document, Zahara shall provide Customer with an invoice specifying the fees for the Products provided pursuant to the applicable Transaction Document.
3.2. Payment. Unless otherwise agreed in the applicable Transaction Document, Customer shall pay all fees specified in the applicable invoice for the Products within thirty (30) days from the invoice date. Customer shall pay a late charge of 15% per month on all payments which are not paid when due.
3.3. Taxes. Fees and other charges described in the Agreement do not include taxes. Customer will pay any sales, value-added or other similar taxes imposed by applicable law based on the Products that Customer ordered, except for taxes based on Zahara’s income. If Zahara is required to pay taxes, Customer shall reimburse Zahara for such amounts. If Customer is required by law to make any tax withholding from amounts paid or payable to Zahara under the Agreement, (i) the amount paid or payable shall be increased to the extent necessary to ensure that Zahara receives a net amount equal to the amount that it would have received had no taxes been withheld and (ii) Customer shall provide proof of such withholding to Zahara.
3.4. Non-Refundable Fees. Customer acknowledges and agrees that orders placed by Customer for Products will be non-cancellable and the fees paid are non-refundable unless otherwise expressly stated in the Agreement.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Zahara Ownership. All Intellectual Property Rights in and to the Products, design contributions, related knowledge or processes, and any update, upgrade, modification, enhancement or derivative works of the foregoing, regardless whether or not solely created by Zahara or jointly with the Customer, shall belong to, and vest in, Zahara or, as applicable, its licensors. All rights not expressly granted to Customer are reserved to Zahara or, as applicable, its licensors.
4.2. Rights to Customer Content. Customer retains all right, title, and interest in and to the Customer Content. During the Term, Customer hereby grants to Zahara and its Affiliates a global, royalty-free, irrevocable, sub-licensable, non-exclusive license to use, copy, distribute, modify, display, and perform the Customer Content as necessary for Zahara to perform its obligations under the Agreement and to provide the Products.
4.3. Non-Assertion of Rights. Customer covenants, on behalf of itself and its successors and assigns, not to assert against Zahara, its Affiliates or licensors, any rights, or any claims of any rights, in any Products and Documentation, and Customer hereby voluntarily waives any right to demand from Zahara, its Affiliates or licensors any rights to any Products and Documentation, except the rights which are expressly granted to Customer under the Agreement.
4.4. Suggestions and Residual Knowledge. Zahara shall have all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to, and the unrestricted royalty-free right to use and incorporate into the Products, any suggestions, enhancement requests, recommendations or other feedback provided by Customer, relating to the Products. Furthermore, Customer acknowledges and agrees that Zahara is free to use its general knowledge, skills and experience, and any ideas, concepts, know-how and techniques, related to or derived from the performance of the Agreement.
5.1. Confidential Information. From time to time, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), whether orally or in physical form, confidential or proprietary information of or in the possession of the Disclosing Party (including confidential or proprietary information of a third party that is in the possession of the Disclosing Party) in connection with the Agreement. The term “Confidential Information” means any and all information in any form that Disclosing Party provides to Receiving Party in the course of the Agreement and that either (i) has been marked as confidential; or (ii) is of such nature that a reasonable person would consider confidential under like circumstances. For the avoidance of doubt, Confidential Information includes any Products and any information pertaining to such Products (including, but not limited to, any user manuals, mathematical techniques, correlations, concepts, designs, specifications, listings, and other Documentation, whether or not embedded on a device or another form of media). Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the Receiving Party can show (a) is or has become generally available to the public without breach of the Agreement by the Receiving Party, (b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party without breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party’s rights, or (d) was developed by the Receiving Party independently of any Confidential Information received from the Disclosing Party.
5.2. Confidentiality Obligations. Each Party or third party whose Confidential Information has been disclosed retains ownership of its Confidential Information. Each Party agrees to (i) protect the Confidential Information received from the Disclosing Party in the same manner as it protects the confidentiality of its own proprietary and confidential materials but in no event with less than reasonable care; and (ii) use the Confidential Information received from the Disclosing Party solely for the purpose of the Agreement. Upon termination of the Agreement or upon written request submitted by the Disclosing Party, whichever comes first, the Receiving Party shall return or destroy, at the Disclosing Party’s choice, all of the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, Zahara shall not be required to return or destroy any such Confidential Information if such return or destruction is impracticable or technically infeasible. Except with respect to its Affiliates, employees, contractors, or agents who need to know Confidential Information in order to support the performance of such Party’s obligations related to the Agreement, and who are contractually bound by confidentiality obligations that are at least as protective as those contained in the Agreement, neither Party shall, disclose to any person any Confidential Information received from the Disclosing Party without the Disclosing Party’s prior written consent. The Receiving Party will be responsible for any breach of this Section 5 (Confidentiality) by its Affiliates, employees, contractors, and agents and any third party to whom it discloses Confidential Information in accordance with this Section 5 (Confidentiality). For Confidential Information that does not constitute a “trade secret” under applicable law, these confidentiality obligations will expire three (3) years after the termination or expiration of the Agreement. For Confidential Information that constitutes a “trade secret” under applicable law, these confidentiality obligations will continue until such information ceases to constitute a “trade secret” under such applicable law. However, the Receiving Party may disclose Confidential Information pursuant to an order of a court or governmental agency, provided, that, if permitted by applicable law, the Receiving Party shall first notify the Disclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. Notwithstanding anything to the contrary contained in this Agreement, Customer authorizes Zahara to collect, use, disclose, and modify in perpetuity information or data (including, but not limited to, general usage information and measurements) that is provided by Customer in connection with the use or receipt of the Products (or generated or created in the course of Zahara providing the Products) for the purposes of developing, improving, optimizing, and delivering Products; provided, however, that any disclosure of such data shall only include information or data that Zahara develops or derives from such collected data or information (but such disclosure will not include the actual underlying Confidential Information of Customer).
5.3. Press Releases and Client List Reference. Neither Party shall issue any press release concerning the other Party’s work without the other Party’s consent. Notwithstanding the foregoing, Zahara may identify Customer as a client of Zahara and use Customer’s name and logo and release an announcement regarding the award of the Agreement and Zahara is hereby granted a license for the term of the Agreement to use Customer’s name and logo for this purpose from time to time as needed. Zahara may generally describe the nature of the work in Zahara’s promotional materials, presentations, case studies, qualification statements, and proposals to current and prospective clients.
6. DATA PROTECTION
6.1. Customer Content. Customer is responsible for the Customer Content and entering it into the Products. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required in connection with the performance, receipt or use of the Products. Customer will collect and maintain all personal data contained in the Customer Content in compliance with applicable data privacy and protection laws.
6.2. Security. Customer will maintain reasonable security standards for the use of the Products by users. Customer is solely responsible for determining the suitability of the Products for Customer’s business processes and for complying with all applicable legal requirements regarding Customer Content and its use of the Products. Customer will provide reasonable assistance required in connection with the provision of the Products and the support by Zahara. Customer acknowledges and agrees that Customer’s reasonable assistance is a necessary precondition for Zahara’s correct performance of its obligations under the Agreement. Customer bears all consequences and costs resulting from breach of its duties.
7. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT, ZAHARA AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR STATEMENTS, WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ZAHARA, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES SET FORTH IN THE AGREEMENT AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. ZAHARA DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE IN COMBINATIONS OTHER THAN AS SPECIFIED IN ZAHARA’S DOCUMENTATION (AS APPLICABLE), THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PRODUCTS WILL PROTECT AGAINST ALL POSSIBLE SECURITY THREATS, INTERNET THREATS OR OTHER THREATS OR INTERRUPTIONS. THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MAY BE SUBJECT TO TRANSMISSION ERRORS, DELIVERY FAILURES, DELAYS AND OTHER LIMITATIONS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
8. LIMITATION OF LIABILITY
8.1. CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL ZAHARA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS, REVENUE, LOSS, CORRUPTION OR DESTRUCTION OF DATA, BUSINESS INTERRUPTION, OR DOWNTIME), REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER IN CONTRACT, TORT, INDEMNITY, OR OTHERWISE), AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Damages Cap. The aggregate liability of Zahara to Customer for any loss or damage arising under or in relation to the Agreement, regardless of the basis of liability (whether arising out of liability under breach of contract, tort (including but not limited to negligence), misrepresentation, breach of statutory duty, breach of warranty or claims by third parties arising from any breach of the Agreement) shall not exceed the fees paid by Customer pursuant to the applicable Transaction Document for the specific Product giving rise to such liability in the twelve (12) month period preceding the date of the incident giving rise to the claim. The provisions of this Section 8 allocate the risks between Zahara and Customer, and Zahara’s pricing reflects this allocation of risk and the limitation of liability specified herein. Notwithstanding the foregoing, the limitations on amounts of damages set forth in this Section 8.2 shall not apply to Zahara’s intentional misconduct, fraud, or fraudulent misrepresentation, or to the extent prohibited by applicable law.
9.1. Indemnification by Zahara. Zahara shall defend, indemnify, and hold harmless Customer against claims brought against Customer by any third party alleging that Customer’s use of the Products, in accordance with the terms and conditions of the Agreement, constitutes an infringement or misappropriation of a patent, copyright, or trade secret of a third party. Zahara will pay damages finally awarded to the third party (or the amount of any settlement Zahara enters into) with respect to such claims. This obligation of Zahara shall not apply if the alleged infringement or misappropriation results from: (a) use of the Products in conjunction or combination with any other software, services, or any product, data, item, or apparatus that Zahara did not provide (including any Third-Party Products); (b) anything Customer provides or designs including configurations, instructions, or specifications (including any Products that were provided pursuant to Customer’s designs, drawings, or specifications); (c) a modification of a Product other than with Zahara’s prior written consent; (d) Customer’s failure to use the latest release or version of a Product (including any corrections or enhancements) where such use would have prevented the infringement or misappropriation claim; or (e) any use, storage, distribution, reproduction, or maintenance not permitted by the Agreement. If Zahara believes, in its reasonable opinion, that a claim under this Section 9.1 could or is likely to be made, Zahara may cease to offer or deliver such Products without being in breach of the Agreement.
9.2. Infringement Remedies. In the event a claim under Section 9.1 is made and such Product is held to infringe or misappropriate a third-party’s patent, copyright, or trade secret, then Zahara may, at its sole option and expense: (a) procure for Customer the right to continue using the Product under the terms of the Agreement or (b) replace or modify the Product to be non-infringing without a material decrease in functionality. If these options are not reasonably available, Zahara or Customer may terminate the Agreement upon written notice to the other and Customer shall immediately cease using or shall return the infringing Product. The provisions of this Section 9.2 state the sole, exclusive, and entire liability of Zahara to Customer, and is Customer’s sole remedy, with respect to third-party claims covered by Section 9.1.
9.3. Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Zahara and its Affiliates (and each of their licensors) and each of their respective officers, directors, contractors, agents, and employees (“Zahara Indemnitees”) against claims brought against Zahara Indemnitees by any third party arising from or related to: (a) any use of the Products by Customer in violation of the Agreement or any applicable law or regulation; (b) any Customer Content; and (c) an allegation that the Customer Content or other material provided by Customer, or use of the Products by Customer in violation of the Agreement or applicable law or regulation, violates, infringes, or misappropriates the Intellectual Property Rights of a third party. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer and/or its named users or by the conduct of a third-party using Customer’s access credentials.
9.4. Indemnification Requirements. The indemnification obligations under this Section 9 are conditioned on: (a) the Party against whom a third-party claim is brought timely notifying the other Party in writing of any such claim, provided however that a Party’s failure to provide or delay in providing such notice shall not relieve a Party of its obligations under this Section 9 except to the extent such failure or delay prejudices the defense; (b) the Party who is obligated to defend a claim having the right to fully control the defense of such claim; (c) the Party against whom a third-party claim is brought reasonably cooperating in the defense of such claim; and (d) Customer complying with Zahara’s direction to cease any use of the Products which in Zahara’s reasonable opinion, is likely to constitute an infringement or misappropriation. Any settlement of any claim shall not include a financial or specific performance obligation on or admission of liability by the Party against whom the claim is brought, provided however that Zahara may settle any claim on a basis requiring Zahara to substitute for the Products any alternative substantially equivalent non-infringing products. Zahara shall not be responsible for any settlement made without its consent. The Party against whom a third-party claim is brought may appear, at its own expense, through counsel reasonably acceptable to the Party obligated to defend claims. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other Party’s rights.
10. TERMS AND TERMINATION
10.1. Term of GTCs. The initial term of these GTCs begins on the Effective Date and shall continue thereafter for five (5) years unless terminated earlier by a Party pursuant to these GTCs (including, but not limited to, this Section 10 (Term and Termination)) (the “Initial Term”). The GTCs will auto-renew for one (1) year periods following the Initial Term (each, a “Renewal Term”) until either Party provides notice of intention to not renew sixty (60) days before the end of the then current Initial Term or Renewal Term. The Initial Term and each Renewal Term shall collectively be referred to as the “Term”.
10.2. Transaction Document Term. The initial term of each Transaction Document shall commence on the effective date specified in the Transaction Document (the “TD Effective Date”) and continue thereafter until: (a) the end of the term of the Transaction Document as specified in the Transaction Document; (b) if specified in the Transaction Document, delivery of the Products in accordance with the Transaction Document; or (c) earlier termination by either Party in accordance with this Section 10 (Term and Termination) (the “TD Term”).
10.3. Evaluation Term. If Customer is using the Product on an evaluation basis or as a free trial, then the term for such Product will be specified in the Transaction Document. If no such term is specified, the term shall be forty-five (45) days from the date the Product is delivered.
10.4. Termination for Material Breach. Either Party may terminate these GTCs or a Transaction Document for cause if the other Party commits a material breach of this Agreement or Transaction Document (including, without limitation, a delay in Customer’s payment of any money due under this Agreement or any Transaction Document) and fails to cure such breach within thirty (30) days (or with respect to Customer’s payment failure, within ten (10) days) of receipt of a notice of default from the non-defaulting Party.
10.5. Termination for Financial Deterioration. Either Party may terminate this Agreement or a Transaction Document immediately if the other Party files for bankruptcy, ceases or threatens to cease carrying on business, becomes insolvent, or makes an appointment, assignment or novation for the benefit of creditors.
10.6. Effect of Termination. If these GTCs are terminated prior to the completion of one (1) or more Transaction Documents, then the Transaction Documents that are not terminated shall continue to be governed by the GTCs for the remainder of the applicable TD Term.
For as long as any Transaction Document remains in effect, Zahara will maintain, at its sole cost and expense, comprehensive general liability insurance in an amount not less than $1 million AUD. Additionally, Zahara will maintain, at its sole cost and expense, workers’ compensation insurance in accordance with statutory requirements.
12. THIRD-PARTY PRODUCTS
12.1. Third-Party Products. Unless otherwise agreed in writing by Zahara, if Third-Party Products are supplied by Zahara to Customer, such Third-Party Products are provided on a “pass-through” basis only and are subject to the terms and conditions of the third-party vendor, including but not limited to warranties, licenses, indemnities, limitation of liability, prices and changes thereto.
Zahara provides its standard training, e-training for Products. Any fees required for such training will be set forth in the applicable Transaction Document.
14.1. Assignment. The Agreement shall extend to and be binding upon the Parties to the Agreement, their successors, and assigns, provided, however, that neither Party shall assign or transfer the Agreement (including any Transaction Document) without the other Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing limitation, Zahara may assign or transfer the Agreement, in whole or in part, without obtaining the consent of Customer, to a parent company or subsidiary or in connection with the transfer or sale of its entire business or in the event of a merger, divestiture, internal reorganization or consolidation with another company.
14.2. Independent Contractor. Zahara is an independent contractor, and each Party agrees that no partnership, joint venture, agency, fiduciary, or employment relationship exists between the Parties.
14.3. Force Majeure. Except for Customer’s payment obligations, neither Party shall be liable for delays caused by conditions beyond their reasonable control, (“Force Majeure”), provided notice thereof is given to the other Party as soon as practicable. All such Force Majeure conditions preventing performance shall entitle the Party hindered in the performance of its obligations under the Agreement to an extension of the date of delivery of the Products by a period of time equal to the period of delay incurred as a result of the Force Majeure or to any other period as the Parties may agree in writing.
14.4. Waiver. The waiver (whether express or implied) by either Party of a breach or default of any of the provisions of the Agreement (including any Transaction Document) by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
14.5. Notices. All notices and other communications required or permitted under the Agreement will be in writing and delivered by confirmed transmission, by courier or overnight delivery service with written verification of receipt, or by registered or certified mail, return receipt requested, postage prepaid, and in each instance will be deemed given upon receipt. All such notices, approvals, consents and other communications will be sent to the addresses set forth on the Transaction Document or to such other address as may be specified in writing by either Party to the other in accordance with this Section 14.5.
14.6. Invalidity and Severability. If any provision of the Agreement (including any Transaction Document) shall be found by any court to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
14.7. Negotiated Terms. The Parties agree that the terms and conditions of the Agreement are the result of negotiations between the Parties and that the Agreement shall not be construed in favor of or against either Party by reason of the extent to which such Party or its professional advisors participated in the preparation of the Agreement.
14.8. Survival of Provisions. The provisions of the Agreement that by their nature survive expiration or termination of the Agreement will survive expiration or termination of the Agreement, including, but not limited to, the following Sections: 3 (Payments and Invoicing), 4 (Intellectual Property Rights), 5 (Confidentiality), 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9.2 (Indemnification by Customer), 10 (Term and Termination), 12 (Third-Party Products), and 14 (Miscellaneous).
14.9. Governing Law and Jurisdiction. The validity of the Agreement and the rights, obligations and relations of the Parties under the Agreement and in any dispute between them will be construed and determined under and in accordance with the substantive laws of the State of Queensland, without regard to such state’s principles of conflicts of law. If a court must enter or enforce an arbitration award or the binding arbitration provision set forth in Section 14.12 (Binding Arbitration) is deemed invalid or ineffective, then each Party irrevocably agrees to submit to the exclusive jurisdiction of (and waives any objection to the venue of) the federal or state courts located in Brisbane, Queensland to enter or enforce such award or to determine such claim or matter arising out of or in connection with this Agreement, as applicable. To the extent otherwise applicable, the Parties hereto agree that the United Nations Convention on the International Sale of Goods will not apply to this Agreement.
14.10. Binding Arbitration. Any controversy or claim arising out of or relating to the Agreement, including any breach of the Agreement, shall be determined by final and binding arbitration administered by JAMS under its Streamlined Arbitration Rules and Procedures (“Streamlined Rules”). The award rendered by the arbitrator shall be final, non-reviewable, and non-appealable and binding on the Parties and may be entered and enforced in any court having jurisdiction. There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by JAMS in accordance with the Streamlined Rules, which arbitrator shall have substantial experience in resolving business disputes involving similar products or services. The place of arbitration shall be Brisbane, Queensland. The arbitrator will have no authority to award punitive, consequential, liquidated, or other damages waived, disclaimed, or otherwise prohibited by the Agreement and the award shall not exceed the applicable limitation of liability set forth in the Agreement. Neither Party has the right to act as a class representative or participate as a member of a class with respect to any arbitrated controversy or claim arising out of or relating to the Agreement (including any breach of the Agreement).
14.11. Waiver of Jury Trial. Each Party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any proceedings relating to the Agreement or any performance or failure to perform of any obligation under the Agreement.
14.12. Waiver of Right to Class Action. Each Party waives, to the fullest extent permitted by applicable law, any right it may have to participate in a class action in respect of any proceedings relating to the Agreement or any performance or failure to perform of any obligation under the Agreement. Each Party may only bring a claim against the other in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
14.13. Third-Party Beneficiary. Except as expressly set forth in the Agreement, the Parties do not intend to create rights for any person as a third-party beneficiary of the Agreement.
14.14. Entire Agreement; Amendments; Execution. The Agreement constitutes the entire agreement between the Parties relating to its subject matter and supersedes all prior or contemporaneous representations, understandings or agreements whether written or oral, relating to its subject matter. The Agreement will prevail over any additional, conflicting, or inconsistent terms and conditions that may be contained in any purchase order or other document furnished by Customer to Zahara. The Agreement may be amended or modified only by a writing that is signed by or on behalf of both Parties. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. An executed facsimile or electronic copy of the Agreement shall be construed as if it were an original.
Zahara Cloud Services – Acceptable Use Policy
This Acceptable Use Policy (“AUP”), along with the separate agreement with us (the “Zahara Cloud Services Agreement”), describes the acceptable use of and access to the cloud Services offered by Zahara. By using the cloud Services, you (“Customer”) agree to be bound by this AUP in addition to the terms of the Zahara Cloud Services Agreement. If Customer violates this AUP or authorizes or helps others to do so, Zahara may (in addition to any other rights or remedies that Zahara may have under the Zahara Cloud Services Agreement or otherwise) suspend or terminate Customer’s use of the cloud Services in accordance with the terms of the Zahara Cloud Services Agreement. Any terms not defined herein shall have the meanings ascribed to them in the Zahara Cloud Services Agreement.
Customer may not upload Customer Data or use the Services in a manner that Zahara believes:
1. Violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a “Law”), including, but not limited to, the Digital Millennium Copyright Act, or those Laws concerning child pornography and illegal gambling;
2. Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;
3. Violates or otherwise encroaches on the rights of others, including, but not limited to, infringing or misappropriating any intellectual property or proprietary right of another;
4. Advocates or induces illegal activity;
5. Stalks, harasses, or harms anyone, including minors;
6. Impersonates any person or entity or otherwise misrepresents Customer’s affiliation with a person or entity;
7. Modifies, alters, tampers with, repairs, or otherwise creates derivative works of any software included in the Services;
8. Except as allowed by local law, reverse engineers, disassembles, or decompiles the Services or software included in the Services;
9. Accesses or uses the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;
10. Interferes with or disrupts the Services or servers or networks connected to the Services;
11. Uses any high-volume automated means (including robots, spiders, scripts or similar data gathering or extraction methods) to access the Services or any other accounts, computer systems, or networks connected to the Services (each a “System”);
12. Attempts to gain unauthorized access to any portion of the Services or any System, whether through hacking, password mining, or any other means;
13. Violates the security or integrity of a System, including, but not limited to:
a. Accessing or using any System without permission, including attempts to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System;
b. Monitoring data or traffic on a System without permission;
c. Forging packet or email headers, or any part of a message describing its origin or route;
d. Uploading Customer Data that contains viruses, worms, corrupt files, Trojan horses, or other forms of corruptive code, or any other content that may compromise the Services; or
e. Hacking, destabilizing, or adapting the Services, or altering another website to falsely imply it is affiliated with the Services;
14. Connects to any users, hosts, or networks where Customer does not have permission to communicate with such users, hosts, or networks, including, but not limited to:
a. Monitoring or crawling a System so that such System is impaired or disrupted;
b. Conducting denial of service attacks;
c. Intentionally interfering with the proper functioning of any System, including any deliberate attempt to overload a System by any means;
d. Operating network services like open proxies, open mail relays, or open recursive domain name servers; or
e. Using means (manual or electronic) to avoid any use limitations placed on a System, such as access and storage restrictions;
15. Distributes, publishes, sends, or facilitates unsolicited mass e-mailings, promotions, advertising, or solicitations, including commercial advertising and informational announcements;
16. Alters or obscures mail headers or assume a sender’s identity without the sender’s explicit permission; or
17. Collects replies to messages if those messages violate this AUP.
Zahara has the sole discretion to determine whether Customer Data or Customer’s use of the Services is prohibited. All Customer Data that is provided to Zahara or actions that are performed via Customer’s account, whether provided or performed by Customer’s employees, Customer’s contractors, or Customer’s other End Users, are the sole responsibility of Customer.
Monitoring and Enforcement
While not obligated to perform investigations, Zahara may:
1. Investigate violations of this AUP or misuse of the Services;
2. Investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity;
3. Remove, disable access to, or modify any Customer Data or resource that Zahara believes violates this AUP or any other agreement Zahara has with Customer for use of the Services; or
4. Suspend or terminate provision of Services to Customer for uses that violate this AUP or any other agreement Zahara has with Customer for use of the Services.
Zahara may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Zahara’s reporting may include disclosing appropriate Customer information and/or Customer Data. Zahara also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this AUP.
Zahara reserves the right to modify this AUP at any time without notice.
Customer is required to immediately report to Zahara (i) any event or issue which could compromise the stability, service or security of the Zahara network and (ii) any known violation of this AUP.