When used in the Agreement, the following capitalized terms shall have the following meanings:
1.1 “Zookal Content” means all software, data, text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from Zookal that the Customer may access or the Customer may give any third party access through, within or in conjunction with the use of the Subscription Services. Example of Zookal Content include but are not limited to study materials, flashcards, solutions.
1.2 “Order Form” means Zookal’s standard order form (or other similar document duly executed by the Parties) entered into pursuant to this Agreement which specifies the Subscription Services, Products and/or Professional Services to be ordered by Customer hereunder, and the fees therefor.
1.3 “Products” means the software products to which Zookal permits access to Users as part of the Subscription Services, as specified in an Order Form. Product may include any software agent, application or tool that Zookal makes available to Customer for download specifically for purposes of facilitating Customer access to, operation of, and/or use with, the Subscription Services.
1.4 “Subscription Services” means with respect to the Order Form the subscription services provided by Zookal called the Zookal study subscription, wherein Zookal provides services including but not limited to online study material, online study videos, online tutor guidance, online expert guidance and support, test preparations, textbook answers, sample test, flashcards. The Subscription Services may include or exclude any features depending upon the plan chosen.
1.5 “Subscription Term” means the period identified in the applicable Order Form during which Zookal is required to provide Customer with Subscription Services. Subscription Term includes Initial Subscription Term together with any Renewal Terms, as defined herein
1.6 "Users" means those employees, contractors, and end users, as applicable, authorized by Customer or on its behalf to use the Subscription Services in accordance with the Agreement and the applicable Ordering Document. For Subscription Services that are specifically designed to allow Customer’s clients, agents, customers, suppliers or other third parties to access the Subscription Services to interact with Customer, such third parties will be considered “Users” subject to the terms of this Agreement and the applicable Ordering Document.
2.1 Obligations of Zookal. (a) Zookal shall provide Customer with unique one time codes which the Customer/Users may use electronically to gain access to the Subscription Services of Zookal; (b) Zookal shall provide Subscription services to the Customer and Users in accordance with the Terms stated in this Agreement; (c) Zookal shall provide Customer with any support in accessing and making full use of Subscription Services to the extent granted by this Agreement.
2.2 Obligations of Customer. (a) Customer shall make payment for the Subscription Services in accordance with Section 4 of this Agreement; (b) Customer is obligated to follow the terms and conditions of this Agreement and ensure that Users should not violate the same.
- ACCESS; USE; OWNERSHIP; RESTRICTIONS
3.1 Rights Granted. Zookal hereby grants Customer, for the applicable Subscription Term and subject to the terms and conditions of this Agreement and the applicable Ordering Document(s), a limited, non-exclusive, non- transferable, non-sublicensable, irrevocable (except as otherwise set forth herein) right to access and use the Subscription Services, for Customer’s business purposes only. Zookal’s Subscription Services are provided in accordance with applicable Documentation and relevant Order Form. Zookal may modify the Subscription Services and its Documentation from time to time provided, however, such modification shall not result in any material degradation of the Subscription Services provided to Customer during the then-current Subscription Term. The Subscription Services and any Products may contain or rely upon Third Party Content licensed to Zookal under commercial or open source agreements. Customer’s right to use such Third Party Content are governed by the terms of any associated license agreement specified by Zookal or the Third Party, and not under this Agreement. The Subscription code issued by Zookal will become invalid if not redeemed by Customer/Users within a period of 90 days from the date of such issue.
3.2 User Limitations. The following limitations apply to Customer’s use of, or access to, the Subscription Service and limitations set forth in the relevant Order Form: (a) each User may access the Subscription Service only using his or her issued user ID and password; (b) the access rights granted herein are personal and specific to Users, and no person or entity other than an User will access or use the Subscription Services without the prior written consent of Zookal; (c) Customer may change Users by replacing Users who are no longer eligible in Customer's view or who are no longer using the Subscription Services.; (d) Customer/ Users cannot transfer or redeem the Subscription Services for cash to Zookal or any third Party.
3.3 Ownership. Zookal shall retain all right, title and interest (including without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Products, Subscription Services, Zookal Content and Documentation and all copies thereof. . Customer is granted no rights in the Products, Subscription Services, Zookal Content and Documentation other than those limited rights expressly set forth herein and in the relevant Ordering Documents. Except the purpose stated in this Agreement, Customer/Users shall not sell, use or modify the Subscription Services or its contents thereof for commercial purposes.
3.4. Other Restrictions. Customer/ Users shall not use the Products or Subscription Services to: (a) violate any laws or regulations; (b) transmit any material that is obscene or objectionable or that contains viruses or other harmful computer code or files, or (c) infringe the intellectual property or other rights of third parties, or upload, store, share, display, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Zookal reserves the right to terminate the accounts of any User that commit any such violations. Customer is solely responsible for the conduct of its representatives, protecting its own recorded data, and the results obtained by Customer using the Products and Services, and any direct or indirect consequences thereof.
3.5. Customer’s responsibilities. The Customer shall be responsible for the following: (a) choosing its network accessibility provider, notably in terms of security options, (b) compliance with Zookal’s recommended minimum technical specifications required to use the Subscription Services, (c) ensuring the confidentiality and the custody of the credentials communicated by Zookal, (d) protecting the personal laptops accessing the Subscription Services, (e) the results obtained by using the Subscription Services and any direct or indirect consequences thereof, and (f) appointing one of its employees to serve as the primary point of contact with Zookal for any technical issues.
3.6 Documentation and Electronic Access. Access to the Subscription Services and the Documentation shall be provided by electronic means. Subscription Services shall be deemed delivered when access is made available for download to Customer.3.7 Marketing Support. Support from the Zookal marketing team will be subject to meeting the minimum threshold requirement as stated by Zookal in its discussions with the Customer.
- FEES, PAYMENT, TAXES
4.1 Fees. The fees for the Subscription Services shall be set forth in the applicable Ordering Document. In addition to any fees set forth in the Ordering Document. Customer shall reimburse Zookal for any mutually agreed expenses actually incurred by Zookal in providing any on-site portion of the Services. Except as otherwise specified therein, or in an Order Form, (i) Subscription Services fees are based on negotiated rates as mentioned in the Order Form, (ii) quantities ordered cannot be decreased during the relevant Subscription Term, and (iii) once an Ordering Document is placed, payment obligations are non-cancelable and fees paid are non-refundable.
4.2 Payment Terms. Unless otherwise agreed in the applicable Ordering Document payment shall become due within a period of sixty (60) days from the last payment made. The Customer shall pay the price agreed between the Parties at the time of execution of this Agreement.
4.3 Late Payment; Suspension of Services. Any late payment will accrue interest charges at the rate of 1% of the outstanding balance per month, or the amount prescribed by law, whichever is lower. If Customer fails to make full payment of the fees set forth in the Ordering Document by more than thirty (30) days after the due date, upon written notice by Zookal, Zookal may, if such fees remain unpaid subsequent to such written notice, suspend the Customer’s right to use the relevant Subscription Services and/or the Product.
4.4 Payment Disputes. Zookal will not exercise its rights under Section 3.3 above if Customer disputes the applicable fees reasonably and in good faith and cooperates diligently to resolve the dispute.
4.5 Taxes. Customer shall pay any taxes, duties, or charges (including any sales, withholding or value added taxes) imposed by any federal, state or local governmental entity for Products or Services provided under this Agreement, except for taxes based solely on Zookal’s net income, property and employees.
- TERM & TERMINATION
5.1 Agreement Term. This Agreement shall commence from the Effective Date and shall continue until terminated pursuant to this Section.
5.2 Termination for Breach. Either Party may terminate this Agreement and/or any Ordering Document hereunder upon material breach by the breaching Party and such breach(es) has remained uncured for a period of thirty (30) days from the date of receipt of written notice by the non-breaching Party.
5.3 Termination for Financial Incapability. Either party may terminate this Agreement and/or any Ordering Document, immediately, upon written notice to the other Party if the other Party: (a) admit in writing its inability to pay its debts generally as they become due or the winding up of its business; (ii) makes a general assignment for the benefit of its creditors; (iii) institute proceedings to be adjudicated in a voluntary arrangement or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy legislation, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or insolvency covering all or substantially all of such Party’s property or providing for the liquidation of such Party’s property or business affairs.
5.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 5.2 (Termination for Breach) or Section 5.3 (Termination for Financial Incapability), Zookal will provide a pro-rata refund to Customer of any prepaid fees for the remainder of the prepaid term as of the date of termination. If this Agreement is terminated by Zookal in accordance with Section 5.2 (Termination for Breach) and Section 5.3 (Termination for Financial Incapability), Customer will pay any unpaid fees covering the remainder of the term of all Ordering Documents. In no event the termination of this Agreement and/or any Ordering Document relieves Customer of its obligation to pay any fees payable to Zookal for the period prior to the date of termination. Each Party shall return or destroy the material which either Party has obtained in the course of this Agreement from the other Party post termination.
6.1 Indemnification. Customer shall keep Zookal indemnified in cases of any liability including but not limited to any attorney fees arising out of any use, misuse, deficiency of service or on any other ground on which the Users may initiate legal proceedings against any Court of law or any other adjudicatory body.
6.2 Governing Law & Jurisdiction. The validity, construction and enforcement of this Agreement shall be determined in accordance with the laws of NSW, Australia. Both Parties irrevocably consent to the jurisdiction of the courts in and for such jurisdiction.
6.3 Dispute Resolution. In case of any dispute arising out of or in connection to this Agreement, if the Parties' respective commercial representatives cannot resolve any dispute within thirty (30) days, it shall be escalated by reference to the persons named or holding the positions (or their equivalents) at the first level stated above them. A period of ten (10) days are allocated for this negotiation. If the disputes are still not resolved within a period of forty (40) days, then either Party can go in for arbitration. The arbitration shall be conducted by a sole arbitrator jointly appointed by both the Parties, if Parties fail to decide within a period of thirty (30) days after the notice of appointing arbitrator is given by either Party, the Court having Jurisdiction shall appoint the same.
6.4 Equitable Relief. Each Party acknowledges that damages alone will be an inadequate remedy for breach of this Agreement pertaining to protection of a Party’s intellectual property rights or Confidential Information. Accordingly, each Party will have the right, in addition to any other remedies available at law or in equity, to seek temporary, preliminary and/or permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of such obligations in this Agreement.
6.5 Notices. All notices or other communications permitted pursuant to this Agreement shall be in writing and shall be deemed to have been delivered by email address provided by both the Parties set forth in the Ordering Document, or to such other address as any such Party may have designated by like notice forwarded to the other Party hereto.
6.6 Force Majeure. A Party’s performance under this Agreement is excused if that Party is unable to perform under this Agreement due to an event beyond its reasonable control, including without limitation, natural disasters, labor unrest, government restrictions (including the denial or cancellation of any export or other license), electrical, internet, or telecommunication outage that is not caused by the obligated party, acts of terrorism, and the like (“Force Majeure Event”). Both Parties will use reasonable efforts to mitigate the effect of a Force Majeure Event. If such an event continues for more than thirty (30) days starting on the day the Force Majeure Event starts, either Party may cancel unperformed services upon written notice. This section doesn’t excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the services.
6.7 Severability. If any part of this Agreement is rendered inoperative or held contrary to law by any court of law or any other adjudicatory body which has jurisdiction to deal with this Agreement, then the inoperative part will be severable from this Agreement and other clauses shall subsist.
The parties acknowledge that they have read this Agreement, understand it, and agree to be bound by its terms; and the person signing on behalf of each has been authorized to do so.