Effective date: May 8, 2020
Important: Click the “I agree to the terms of service and privacy policy” checkbox, or other control similarly accepting these Terms, only if you (as authorized representative of the corporation, business, or other entity in whose name the Hosted Services are being used) (hereafter “You” or “Customer”) have read and understand these Terms of Use and the Tizra Privacy Policy (defined in Section 2.2; together with the Terms of Use, the “Terms”), and agree to be bound by all the terms and conditions contained herein. These Terms are legally binding, and if these Terms are not acceptable to you, exit this website now and cease any further use of the Tizra website, Tizra Software, and Hosted Services (as defined below). Accepting these Terms is a condition of your access to the Tizra website, Tizra Software, and Hosted Services.
These Terms set forth the terms and conditions under which Customer shall order and use, and Tizra, Inc. (“Tizra”) shall provide, (a) access via the Internet to Tizra’s proprietary website management and publishing applications, which will allow Customer to manage and design a website to make content available to its customers, and (b) hosting of such Customer website on the Internet, as more fully set forth below.
1 Definitions. The terms defined in this Section 1 and throughout the Terms, whether used in the singular or plural, shall have the meaning set forth herein.
2 Eligibility. As an express condition of being permitted to use the Tizra Software and Hosted Services, Customer represents and warrants that it (i) has the legal capacity (including, without limitation, being over the age of eighteen (18)) to enter into contracts under the law of the jurisdiction in which it resides, and (ii) is not on a list of persons barred from receiving services under U.S. laws (including, without limitation, the Denied Persons List and the Entity List issued by the U.S. Department of Commerce, Bureau of Industry and Security) or other applicable jurisdiction. For more information on our practices for ineligible users, please refer to the Tizra Privacy Policy. Tizra reserves the right to refuse use of the Tizra Software or Hosted Service to anyone for any reason at any time. In consideration for such use, Customer agrees to provide true, accurate, current, and complete information about Customer, where applicable. Tizra assumes no duty to verify such information. If Customer collects or processes the information of children under the age of eighteen (18), Customer will be solely responsible for all compliance and liability associated with such collection and processing.
3 Hosted Web Application Services.
3.1 Hosted Services. During the Term, “Hosted Services” means the following services as offered by Tizra to Customer:
Customer acknowledges that the Hosted Services do not entitle Customer to download or otherwise obtain a copy of the Tizra Software. Tizra and/or its subcontractors shall provide such Hosted Services twenty-four (24) hours per day, seven (7) days per week; provided, however, that from time to time, Tizra and/or its subcontractors may perform scheduled or unscheduled maintenance as may be necessary to maintain the proper operation of the Tizra Software and Customer Publishing Website, and access to Hosted Applications and the Customer Publishing Website may be impaired or interrupted while such maintenance is being performed. Tizra shall use good faith efforts to perform maintenance at times and in a manner to reduce adverse impact to the Customer.
3.2 Customer Content and End User Data. During the Term, Tizra or its subcontractors will perform backups of changed Customer Content and End User Data files. Such backups provided herein should not be considered a replacement for Customer having appropriate disaster or business recovery plans and, in particular are not designed to provide “undo” functionality to the End User. Tizra shall collect and use Customer Content and End User Data consistent with Tizra’s then applicable privacy policy, a current version of which may be found at https://terms.tizrapublisher.com/privacy (the “Privacy Policy”). Except as otherwise provided in the Privacy Policy, Tizra shall not use the Customer Content and End User Data except: (a) to provide the Hosted Services, (b) to aggregate information relating to transactions for statistical analysis and business measures of the performance of the Hosted Services, (c) to monitor Customer’s and its Permitted Users’ and End Users’ use of the Hosted Services for security purposes, and (d) to enforce the terms of these Terms. Except as otherwise provided in the Privacy Policy, Tizra shall not disclose the End User Data or Customer Content to a third party, other than to any Tizra subcontractors who need to know such information in order to provide the Hosted Services; provided that such subcontractors are bound by similar confidentiality obligations. The foregoing notwithstanding, Tizra may use non-identifiable, aggregated End User Data, as well as non-identifiable, aggregated data relating to Customer’s use of the Hosted Application Services for other commercial purposes.
3.3 Security. As part of the Hosted Services, Tizra (or its subcontractors) shall use good faith efforts to implement security measures (such as password protection and encryption) and maintain such other safeguards that are reasonably intended to prevent the destruction, loss, theft, interception, or alteration of Hosted Data by unauthorized persons and that are consistent with current commercial practices in the industry. The parties expressly recognize that, although Tizra shall take such reasonable steps, or cause such reasonable steps to be taken, to prevent security breaches, it is impossible to maintain flawless security. Except with respect to Tizra’s express obligations in this Section 3.3, Customer is solely responsible for any damage caused by unauthorized destruction, loss, interception, or alteration of the Customer Content or End User Data by unauthorized persons.
4 Customer Obligations.
4.1 End User Publisher Transactions. Customer represents and warrants to Tizra that it shall use End User Data in accordance with the Tizra Privacy Policy and all other applicable privacy policies (including Customer’s privacy policies) and in accordance with all applicable laws and regulations. Customer further represents and warrants to Tizra that Customer shall be solely responsible for determining and accounting for any applicable sales, use, excise, value-added or other taxes owed or required to be paid by any End User for transactions completed with Customer and shall indemnify (in accordance with Section 10) Tizra for failure to accurately determine or account for such taxes.
4.2 Customer Content. Customer covenants and represents and warrants that (a) the Customer Content and the distribution and display of the Published Content to End Users via the Customer Publishing Website shall not infringe or violate the intellectual property rights of any third party, (b) Customer shall not engage in any impermissible advertising or marketing activities through the Customer Publishing Website or in any other manner violate anti-spamming laws and regulations, and (c) the Customer Content shall not be libelous or defamatory. Customer shall promptly notify Tizra (and in no case later than within two business days) of receiving any allegation that the Customer Content infringes the intellectual property rights of any third party or otherwise does not comply with the requirements of this Section 4. Tizra reserves the right to remove, or require Customer to remove, any such Customer Content from the Customer Publishing Website, or to suspend or terminate the Hosted Services, until Tizra, in its reasonable judgment, is confident such Customer Content complies with the terms of these Terms.
4.3 End Users. Customer is responsible for handling and responding to End User questions regarding the use of the Customer Publishing Website. To the extent End Users report problems or errors with the Customer Publishing Website, Customer shall promptly report such problems or errors to Tizra. Tizra shall address all such problems or errors in accordance with Section 8.1, but shall not be responsible for responding directly to End Users. Customer is solely responsible for handling any End User questions or complaints regarding the Published Content. Notwithstanding any content, notices, or services made available by or through the Tizra Software or Hosted Services, Customer acknowledges and agrees that Customer shall be solely responsible for providing, amending, or updating proper notices and other legally required content and controls for its End Users, as applicable, including but not limited to any Customer terms of service and Customer privacy policies for Customer’s practices related to collection, sharing, and processing of End User Data.
4.4 Customer Internet Access and Use of Tizra Software. Customer shall be solely responsible, at its expense, for establishing, maintaining, and operating Customer’s connection to the Internet (the speed of which may have a significant impact on the responsiveness of the Hosted Applications), including all access lines, all Internet service provider connection charges, and any other applicable charges. Except as permitted and intended by the functionality of the Hosted Applications, Customer shall not access, attempt to access, copy, modify, nor interfere with the Tizra Servers or the Tizra Software. Other than to modify the Customer Publishing Website using the Hosted Applications for display by Tizra as part of the Hosted Services, Customer may not copy, modify, distribute, or reverse engineer the Tizra Software. Customer shall be responsible for keeping secure its administrative login information, which is used by Permitted Users to access the Hosted Applications and modify the Customer Publishing Website, and Tizra shall not be responsible for damages caused by a third party gaining access to the Hosted Applications due to a failure by Customer to keep such information secure.
4.5 Permitted User Restriction. Customer has specified a number of Permitted Users (the “Maximum Users”) at the effective time of ordering the Hosted Services, which may be modified from time to time by Customer by means of the Tizra website. Customer may not authorize and provide passwords and login information to a number of Permitted Users in excess of the Maximum Users at any point in time (and in no case may the concurrent number of Permitted Users exceed such number of Maximum Users at any point in time). Customer shall require that all Permitted Users login to the Hosted Applications using their own unique password and login and not use another person’s password or login.
4.6 Export Control. Customer hereby represents and warrants that (i) Customer understands and acknowledges that some Tizra Software and Customer Content may be subject to export, re-export, and import restrictions under applicable law, (ii) Customer will not use the any Tizra Software or Customer Content in a manner that violates the U.S. Export Administration Act of 1979 and the regulations of the U.S. Department of Commerce, and (iii) Customer is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods.
4.7 Prohibitted Uses. Tizra specifically prohibits any use of the Tizra Software or Hosted Services for:
4.8 Prohibited Conduct. Customer is prohibited and agrees not to engage in the following as it relates to the Tizra website, Tizra Software, Tizra Server, Hosted Applications, and Hosted Services:
5 Payment.
5.1 Fees. Upon Customer’s purchase of the Hosting Services, Tizra shall send to Customer a confirmatory e-mail setting forth the type of Hosting Services ordered by Customer and the fees associated with such Hosting Services (the “Customer Order”). Customer agrees to pay to Tizra the fees set forth on any Customer Contract or Customer Order (the “Fees”). By accepting these Terms of Use and providing applicable credit card (the “Credit Card”) credentials, you have authorized Tizra to charge such Credit Card the fees agreed to during the onboarding process, including any renewals set forth therein, and, in addition to any representations made to an applicable third party credit card merchant or payment service used by Tizra, further represent and warrant to Tizra that you are authorized to make such charges to the Credit Card.
5.2 Payment of Invoices. Tizra shall invoice Customer for amounts owed hereunder when due in accordance with the applicable Customer Contract or Customer Order and Customer shall pay all valid invoices within thirty (30) days from Tizra’s invoice date, and may charge Customer’s Credit Card in accordance with Section 5.1. Tizra may discontinue performance under these Terms if Customer fails to pay any sum due and fails to cure such failure within ten (10) days of receiving written notice from Tizra. Tizra reserves the right to (i) charge and collect a service fee on any unpaid, past-due license fee amounts equal to the lesser of one and one-half percent (1½ %) per month or the maximum amount permitted by law, and (ii) suspend access to the Hosted Applications during any period when fees remain unpaid beyond the applicable due date. Customer will reimburse Tizra for all reasonable collection expenses, including reasonable attorneys’ fees and court costs, for delinquent amounts. If Customer has provided Tizra a credit card for purposes of payment hereunder, then Tizra may, and Customer authorizes Tizra to, charge all amounts owed to Tizra hereunder to such credit card as such amounts become due.
5.3 Taxes. All payments due hereunder shall be net of any applicable sales, use, and other taxes, and Customer agrees to pay (or reimburse Tizra, as the case may be) any taxes due in connection with these Terms, excluding taxes on Tizra’s income, for which Tizra is solely responsible; provided, however, that Tizra shall not invoice Customer for any taxes for which Customer has provided Tizra with an appropriate exemption certificate for the applicable delivery jurisdiction.
6 Term; Termination.
6.1 Term. Unless otherwise stated in a Customer Contract or Customer Order, these Terms shall be binding upon Customer on the date that Customer accepts these Terms by clicking the box indicating such acceptance or other similar terms (the “Acceptance Date”) and shall remain in effect until terminated as provided below (the “Term”). Customer shall not create an account or otherwise use or access the Tizra website, Tizra Software, or Hosted Services until Customer has accepted these Terms.
6.2 Termination. Either party has the right to terminate these Terms if the other party is in default of any material obligation under these Terms, which default is incapable of cure or which, being capable of cure, has not been cured within forty five (45) calendar days after receipt of written notice of such default (or such additional cure period as the non-defaulting party may authorize in writing). Notwithstanding the foregoing, Tizra may, in its sole discretion, terminate these Terms or suspend the provision of the Hosted Services (including hosting the Customer Publishing Website) immediately without providing Customer the opportunity to cure due to any of the following: (a) Customer does not make any one or more monthly payments owed to Tizra under Section 5.1 within fifteen (15) business days after the due date, (b) Customer breaches its obligations under Section 4 of these Terms, or (c) Tizra determines, in its sole discretion, that the Published Content or Customer’s distribution of the Published Content is unsuitable.
6.3 Effect of Termination. In the event these Terms are terminated or expire for any reason, then all licenses granted to Customer hereunder to the Hosted Services and Tizra Software shall terminate simultaneously and Customer shall cease to use and access the Hosted Applications and Tizra shall cease to host the Customer Publishing Website. Customer shall not be entitled to a refund of any Fees paid for the Hosted Services and Tizra Software.
6.4 Survival. In addition, the following terms and conditions shall survive any termination or expiration of these Terms: Sections 1, 3.2, 5, 6.3, 6.4, 7, 8, 9, 10 and 11.
7 Intellectual Property.
7.1 Tizra Software. Tizra and its licensors are the sole owners of the Tizra Software and of all copyright, trade secret, patent, trademark, and other intellectual property rights in and to the Tizra Software (including any modifications made thereto by Customer using the Hosted Applications), and these Terms do not provide Customer with title to or ownership of the Tizra Software or any copies thereof, but only a right of limited remote use under the terms and conditions of these Terms.
7.2 Customer Content. Customer and its licensors are the sole owners of the Customer Content and of all copyright, trade secret, patent, trademark, and other intellectual property rights in and to the Customer Content, and these Terms do not provide Tizra with title to or ownership of the Customer Content or any copies thereof, but only a right to use the Customer Content to fulfill its Hosted Service obligations under the terms and conditions of these Terms.
7.3 Attribution on Client Publishing Website. Customer may be required under certain subscription plans to include “Powered by Tizra®” or other similar attribution language on the Customer Publishing Website (“Attribution Language”). For purposes of clarity, except as set forth herein, Customer may not use Tizra’s name or trademarks on the Customer Publishing Website or in the Published Content other than that Customer may reference that Tizra hosts the Customer Publishing Website, provides the software tools that allow Customer to customize and maintain the Customer Publishing Website, and enables the functionality on the Customer Publishing Website. Customer shall not state or imply that the Published Content is Tizra’s or supplied by Tizra, or that Tizra is a party to the End User Publishing Transactions. In addition to the foregoing and irrespective of the terms of such subscription plans, Customer shall remove such Attribution Language at Tizra’s request.
8 Representations and Warranties; Disclaimers of Warranty.
8.1 Software Warranty. Tizra warrants that the Tizra Software shall work materially as described in these Terms. As Tizra’s sole obligation, and Customer’s sole remedy, for any breach of this limited warranty of performance, Tizra shall, in its discretion, correct any errors in the Tizra Software or refund Customer the Fees paid by Customer during the period effected by such material error.
8.2 Non-Infringement. Subject to Customers covenants, obligations, representations and warranties herein, including without limitation Sections 3.2 and 7.2, the use by Customer of all or any part of the Tizra Software and the Hosted Services pursuant to the terms of these Terms will not infringe or otherwise violate any copyright, trade secret, or U.S. trademark of any third party and, to Tizra’s knowledge, when used for its intended use, will not infringe any patent of any third party.
8.3 Disclaimers of Warranty. Except as expressly stated in this Section 8, Tizra disclaims any and all representations and warranties, express or implied, by operation of law or otherwise, regarding or relating to the Tizra Software, Hosted Services, or any other services products or services delivered under these Terms. Tizra specifically disclaims all implied warranties, including without limitation any warranties of merchantability or fitness for a particular purpose (irrespective of any previous course of dealing between the parties or custom or usage of trade), non-infringement, or that the Hosted Services or Tizra Software will be uninterrupted or error free.
9 Limitation of Liability.
9.1 To the maximum extent permitted by applicable law, Tizra and its suppliers and licensors will not be liable for any loss of revenue, profits or goodwill or for any special, incidental, indirect, consequential or punitive damages or losses resulting from Tizra’s or the Tizra Software’s performance or failure to perform pursuant to the terms of these Terms, from the furnishing, performance or loss of use of such products or services, including, without limitation, from any interruption of business, whether resulting from breach of contract or other legal liability whatsoever, even if Tizra has been advised of the possibility of such damages.
9.2 Except with respect to Customer’s obligations to pay any outstanding amounts owed hereunder and the indemnification obligations set forth in Section 10, the maximum aggregate liability of either party arising out or relating to these Terms shall not exceed the total fees paid by Customer to Tizra hereunder during the twelve months previous to the events giving rise to such claim.
10 Indemnification. Customer agrees to indemnify, defend, and hold Tizra and its affiliates, and their respective officers, directors, employees, and agents, successors and assigns, harmless from all liabilities, claims, damages, losses, costs, expenses, demands, suits and actions of third parties (including without limitation reasonable attorneys’ fees) (collectively “Damages”) arising from or in connection with (a) Customer’s breach of its representations, warranties and obligations in Section 4, (b) Customer’s failure to comply with any applicable laws or regulations with respect to its use of the Customer Publishing Website or Published Content, or (c) Customer’s failure to charge or collect from End Users any and all applicable sales, use, excise, value-added and other taxes, levies, assessments and charges.
11 Miscellaneous.
11.1 Assignment. Neither party shall assign, delegate, sublicense, or transfer any of its obligations, responsibilities, rights or interests under these Terms without the written consent of the other party, except to (a) a successor in a merger or a sale of all or substantially all of such party’s capital stock, assets or business or (b) solely with respect to Tizra, a majority owned subsidiary of Tizra or an affiliate under the same common control as Tizra. Any assignment, delegation, sublicensing, or transfer by either party in violation of this subsection shall be void and without force or effect.
11.2 Publicity. Tizra may reference Customer’s use of the Hosted Services, and may display portions of the Customer Publishing Website, in its marketing and promotional materials.
11.3 Force Majeure. In the event that either party is unable to perform any of its obligations under these Terms because of causes beyond its reasonable control or because of any Act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster (each, a “Force Majeure Event”) the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under these Terms shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. Nothing provided herein shall excuse the delay of any payment that is validly due by Customer under these Terms.
11.4 Notices. Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by a party pursuant to the terms of these Terms shall be in writing and shall be deemed given (a) when delivered personally or by electronic mail to the Customer contact (who shall be the person accepting these terms and conditions on behalf of Customer, unless otherwise indicated by Customer and accepted by Tizra), (b) on the next business day after timely delivery to an overnight courier, (c) on the third business day after deposit in the U.S. mail (certified or registered mail return receipt requested, postage prepaid), and (d) upon confirmation of receipt by facsimile transmission; in each case addressed to the party at such party’s address as set forth on the cover page to the Agreement (to the attention of, in the case of Tizra, the Chief Executive Officer or, in the case of Customer, the title of its signatory as set forth on the signature page hereto) or as subsequently modified by the receiving party pursuant to written notice.
11.5 Mediation. Prior to a party instituting legal proceedings to resolve a dispute under these Terms (a “Dispute”), such party shall first notify the other party of such Dispute and both parties shall work together in good faith to resolve such matter. If, however, such matter is not resolved within fifteen (15) days of such original notice, then either party, prior to instituting legal proceedings, may notify the other party that it desires to try to settle such Dispute through mediation, in which case both parties shall such submit the Dispute to voluntary, non-binding mediation. Mediation must occur within thirty (30) business days after notice from the notifying party of its desire to have the Dispute mediated. The Parties mutually shall select an independent mediator experienced in similar agreements, and each shall designate a representative(s) to meet with the mediator in good faith in an effort to resolve the Problem. The specific format for the mediation shall be left to the discretion of the mediator and the designated party representatives and may include the preparation of agreed-upon statements of fact or written statements of position furnished to the other party. If the parties are unable to resolve a Dispute within forty five (45) days of the original notice of such Dispute (including if for whatever reason the parties were unable to agree on an impartial mediator), then either party may seek litigation. A party may seek a judicial resolution only after first following the provisions set forth in this Section, except that either party may seek injunctive or other equitable relief at any time. To the extent Tizra is permitted to suspend or terminate the Hosted Services pursuant to the terms of these Terms, then Tizra may do so without first complying with the provisions of this Section 11.5, provided that Customer may seek resolution under this Section 11.5 if it disputes Tizra’s right to so terminate or suspend the Hosted Services.
11.6 Governing Law. All questions concerning the validity, operation, interpretation, and construction of the Agreement will be governed by and determined in accordance with the substantive laws of the State of Rhode Island without regard to its conflicts of law provisions. Subject to Section 11.5, other than as necessary to enforce any final judgment, award or determination, any action brought pursuant to or in connection with these Terms shall be brought only in the state or federal courts within the State of Rhode Island without regard to its conflict of laws provisions. In any such action, both parties submit to the personal jurisdiction of the courts of the Rhode Island and waive any objections to venue of such courts.
11.7 Waiver of Compliance. Neither party shall by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party of any of the provisions of these Terms. Further, the waiver by either party of a particular breach of these Terms by the other shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of these Terms.
11.8 Remedies. Except as expressly stated otherwise herein, each party’s rights and remedies provided for in these Terms shall be cumulative, exercisable concurrently or separately, and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
11.9 Entire Agreement. The parties hereto acknowledge that these Terms and any Customer Contract or Customer Order are the complete and exclusive statement of agreement respecting the subject matter hereto and supersedes and renders null and void any and all agreements and proposals (oral or written), understandings, representations, conditions, and other communications between the parties relating hereto. Tizra expressly reserves the right to amend these Terms at any time in its sole discretion, and without prior notice to Customer, by including such amendments in these Terms, along with an updated effective date of such amended Agreement. Any continued use of Tizra’s website, Tizra Software, or Hosted Services by Customer after the posting of such amended Agreements shall be deemed to indicate Customer’s irrevocable agreement to such amended Agreement. If at any time Customer does not agree to be subject to these Terms or any amendments thereto, Customer may no longer use the website, Hosted Applications or Hosted Services.