SOFTWARE AS A SERVICE TERMS AND CONDITIONS

These Terms are valid for the Quote which these Terms accompany.

For the duration of the term of the Services as set forth in the Quote, You have the nonexclusive, non-assignable, royalty free and worldwide limited right to use the Services solely subject to the terms of these Terms and Quote. You may allow Your Users to use the Services for this purpose and You are responsible for Your users’ compliance with these Terms. The Services are provided as described in, and subject to, the Services policies referenced in the Quote. You acknowledge that Zenwork has no physical delivery obligation and will not ship copies of software to You as part of the Services. You agree that You do not acquire under these Terms any license to use software specified in the Quote in excess of the scope and/or duration of the Services. Upon the expiration or termination of these Terms or the Services thereunder, Your right to access or use the Services shall terminate automatically and without any act or deed.

You retain all ownership and intellectual property rights in and to Your Data. Zenwork or its licensors retains all ownership and intellectual property rights to the Services and the Zenwork Programs, including any modifications or derivatives thereof, and all Zenwork data and software. Zenwork retains all ownership and intellectual property rights to anything developed and delivered under the Quote or these Terms. Third party technology that may be appropriate or necessary for use with the software is specified in the program documentation or Quote as applicable. Your right to use such third-party technology is governed by the terms of any third-party technology license agreement or other document specified by Zenwork, and not under these Terms.

You may not:

• remove or modify any program markings or any notice of Zenwork’s or its licensors’ proprietary rights;
• make the Services available in any manner to any third party for use in the third party’s business operations, except as expressly permitted herein or in the Program Documentation or Quote;
• modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Zenwork;
• disclose results of any Services or program benchmark tests or perform penetration testing or other scans on Zenwork’s websites without Zenwork’s prior written consent; or
• license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Zenwork Programs or materials available, to any third party other than, as expressly permitted under these Terms.
• If You participate in Services including use of the Taxpayer Identification Number Matching Program (the “TIN Program”), You must:
• comply with all requirements of Revenue Procedure 2003-9 (Microsoft Word - RP-03-09.doc (irs.gov)) or any IRS updates thereafter);
• transmit only name/TIN combinations relating to accounts with respect to which there is a reasonable expectation that a reportable payment is made;
• transmit only name/TIN combinations that have not been previously transmitted by You to the Service for matching;
• maintain the confidentiality of information obtained through TIN solicitation activities in accordance with the requirements of §31.3406(f)-1 of the Employment Tax Regulations; and
• provide the Service with the information necessary to monitor the effectiveness of the TIN Program
• The rights granted to You under these Terms are also conditioned on the following:
• except as expressly allowed in any written agreement between Zenwork and You, the rights of any User licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
• except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
• You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

Zenwork warrants that the Services will perform substantially in all material respects in accordance with the Program Documentation. If the Services provided to You for any calendar month during the Services term were not performed as warranted, You must provide written notice to Zenwork as specified in the Quote no later than five (5) business days after any such failure to perform or within such other period stated in the Quote. Zenwork’s only obligation and Your only remedy for failure of warranty shall be the reperformance of the Services so that they conform to the warranty granted herein. In the event that such reperformance is not practicable within a reasonable period of time, Zenwork may, at its option, refund any payments made with respect to the nonconforming Services.

ZENWORK DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT ZENWORK WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT ZENWORK DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ZENWORK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

If specified in the Quote, You may order certain Services for trial, nonproduction purposes subject to these Terms. Services acquired for trial purposes are provided “as is” and Zenwork does not offer any warranties or provide any representations for such Services.

If a third Party makes a claim against either You or Zenwork (“Recipient” which may refer to You or Zenwork depending upon which Party received the Material as hereinafter defined), that any information, design, specification, instruction, software, service, data, program or material (any of the foregoing, “Material”) furnished by either You or Zenwork (“Discloser” which may refer to You or Zenwork depending on which Party provided the Material), and used by the Recipient directly infringes its intellectual property rights, the Discloser, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Discloser, if the Recipient does the following:

• notifies the Discloser promptly in writing, not later than thirty (30) days after the Recipient receives notice of the claim (or sooner if required by applicable law);
• gives the Discloser sole control of the defense and any settlement negotiations; and
• gives the Discloser the information, authority, and assistance the Discloser needs to defend against or settle the claim.

If the Discloser believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Discloser may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Discloser may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other Party for such Material. If such return materially affects Zenwork’s ability to meet its obligations under the relevant Quote, then Zenwork may, at its option and upon thirty (30) days prior written notice, terminate the Quote. The Discloser will not indemnify the Recipient (i) if the Recipient alters the Material or uses it outside the scope of use identified in the Discloser’s Program Documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient; or (ii) to the extent that an infringement claim is based upon (a) any information, design, specification, instruction, software, data, or material not furnished by the Discloser, or (b) any Material from a third party portal or other external source that is accessible to You within or from the service (e.g., a third party Web page accessed via a hyperlink). Zenwork will not indemnify You (i) to the extent that an infringement claim is based upon the combination of any Material with any products or Services not provided by Zenwork; (ii) for infringement caused by Your actions against any third party if the Services as delivered to You and used in accordance with these Terms would not otherwise infringe any third party intellectual property rights; or (iii) for any infringement claim that is based on: (1) a patent that You were made aware of prior to the date of the Quote (pursuant to a claim, demand, or notice); or (2) Your actions prior to the effective date of the Quote. This section provides the parties’ exclusive remedy for any infringement claims or damages.

Services shall be provided for the period defined in the Quote unless earlier terminated in accordance with these Terms. The term of the Services and any renewal years are collectively defined as the “Services term.” At the end of the Services term, all rights to access or use the Services, including the Zenwork programs listed in the Quote, shall end, automatically and without any act or deed.

If either Party breaches a material term of these Terms and fails to correct the breach within thirty (30) days of written specification of the breach, then the breaching Party is in default and the non-breaching Party may terminate the applicable Quote under which the breach occurred. If Zenwork ends the Quote as specified in the preceding sentence, You must pay within thirty (30) days thereafter all amounts which are due prior to the termination. The non-breaching Party may agree in its sole discretion to extend the thirty (30) day period for so long as the breaching Party continues reasonable efforts to cure the breach. If You end the Quote as specified in this Section, then Zenwork shall remit to You any fees paid for Services not provided prior to the termination date.

You agree that if You are in default under these Terms, You may not use the Services ordered and shall specifically have no rights applicable thereto. In addition, Zenwork may immediately suspend Your password, account, and all access to or use of the Services if You fail to pay Zenwork any amount as required under the Quote and these Terms and do not cure within the first five (5) days of the 30 day cure period, or (ii) if You violate any provision within sections D, J or Q of these Terms. Zenwork may terminate the Services hereunder if any of the foregoing is not cured within 30 days after Zenwork’s initial notice to You thereof. Any suspension by Zenwork of the Services under this Section H shall, in no event, excuse You from Your obligation to make payment(s) to Zenwork.

At Your request, and for a period of up to sixty (60) days after the termination or expiration of the applicable Quote, Zenwork may permit You to access the Services solely and absolutely to the extent necessary for You to retrieve a file of Your raw data then in the Services environment, provided, however, that the form of the file obtainable by You may be a screen shot, .PDF or other non-electronic or non-electronically manipulative form in the event that You are in breach of these Terms or otherwise have any amounts due and owing to Zenwork.

You agree and acknowledge that Zenwork has no obligation to retain Your data and that Your data may be irretrievably deleted after sixty (60) days following the termination of the Quote.

Provisions that survive termination or expiration of the Quote or these Terms are those relating to limitation of liability, indemnity, confidentiality, data retention and privacy, payment, and others which by their nature are intended to survive.

You agree to pay for all Services ordered as set forth in the applicable Quote. Unless expressly stated otherwise in an applicable Quote, any rates or fees identified in a Quote may be adjusted no more than once every twelve (12) months by upon thirty days written notice to You, including by email or by notice on Zenwork’s website. In addition, rates or fees may be adjusted at any time and from time to time to reflect increases in the Consumer Price Index or other direct costs, upon written notice to You, including by email or by notice on Zenwork’s website. Discounts (if any) are based on the filing by You of the quantity of forms or transactions identified in the Quote, within the Term of the Quote.

If Customer prepays fees for forms or transactions, rights to file such forms or transactions shall expire on the earlier of the anniversary of the “paid by” date if stated in the Quote or the anniversary of the date of the Quote. No credit or refund shall be made in respect of such expired rights to file forms or transactions. Zenwork may, in its discretion, roll over expired rights to the next annual period.

No refunds of payments shall be made by Zenwork to Customer. In the event that any refund would otherwise be due for any reason, Zenwork shall provide credit to Customer’s account.

Payment can be completed via ACH, check, wire, a prepaid amount on Your account, payment upon each transaction, or an invoice sent upon request. If Zenwork agrees to process forms or transactions where no credit remains, Customer will be invoiced and agrees to make payment for these Services 10 calendar days from date of invoice. All fees due under the Quote are non-cancelable and the sums paid nonrefundable, except as otherwise specifically stated in the Quote.

You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Zenwork must pay based on the Services You ordered, except for taxes based on Zenwork’s income. You will reimburse Zenwork for reasonable expenses related to providing any on-site portion of the Services. Fees for Services listed in a Quote are exclusive of taxes and expenses. All amounts hereunder are due before or at the time of service unless otherwise set forth in the Quote. Any undisputed overdue amounts owed by You will accrue interest at the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by applicable laws.

You agree that You have not relied on the future availability of any Services, programs or updates in entering into the payment obligations in the Quote; however, the preceding does not relieve Zenwork of its obligation to deliver Services that You have ordered pursuant to the terms of the Quote.

By virtue of the Quote and this Agreement, the parties may have access to information that is confidential, including the terms and pricing under the Quote, Your data residing in the Services information environment, any client lists or client information provided to Zenwork, all intellectual property rights, claims, causes of action and interests in and to trademarks and websites, software, algorithms, methods, processes and all intellectual property and components thereof, and all information clearly identified as confidential at the time of disclosure (“Confidential Information”). Each Party agrees to disclose only information that is required for the performance of obligations under the Quote and this Agreement. A Party’s Confidential Information shall not include information that is or becomes a part of the public domain through no act or omission of the other Party or was known to the Party prior to the date of disclosure by the other Party.

Zenwork and You each agree to hold each other’s Confidential Information in strict confidence for a period of five (5) years from the date of the termination or expiration of the Quote. Also, each of Zenwork and You agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under these Terms. Zenwork will exercise reasonable efforts to protect the confidentiality of Your data residing in the Services environment in accordance with security practices determined in good faith by Zenwork. Nothing shall prevent either Party from disclosing the terms or pricing under the Quote in any legal proceeding arising from or in connection with the Quote or these Terms or from disclosing the confidential information to a governmental entity as required by law, and then solely to the extent thereof. The confidentiality provisions hereof supersede any existing nondisclosure obligations relating to the Services between You and Zenwork.

If You license Zenwork developer materials for use in connection with the Services, such license and use is subject to the API License and Development Agreement, found here- https://zenwork.com/api_license_agreement

You agree that the Quote and these Terms (including the information which is incorporated herein by written reference) is the complete and sole agreement for the Services ordered by You, and that the Quote and these Terms supersede all prior or contemporaneous agreements or representations, written or oral, regarding such Services. If any term of the Quote or these Terms are found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Quote and these Terms. It is expressly agreed that these Terms, including the Quote, shall supersede the terms in any purchase order or other non-Zenwork document and no terms included in any such purchase order or other non-Zenwork document shall apply to the Services ordered. The Quote and these Terms may not be modified, and the rights and restrictions may not be altered or waived except in a writing signed (by hand or electronically) by authorized representatives of You and of Zenwork. In the event of any conflict between the Terms and the Quote, the Quote shall govern.

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES), DATA, OR DATA USE. ZENWORK’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE QUOTE OR THESE TERMS, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO ZENWORK FOR THE SERVICES UNDER THE QUOTE THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST ZENWORK SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern Your use of the Services (including technical data) and any Services deliverables provided to you, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

Neither You nor Zenwork shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); pandemic or other event outside the reasonable control of the obligated Party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such an event continues for more than 30 days, either Party may cancel unperformed Services upon written notice. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services.

In performing the Services, Zenwork will comply with the Zenwork Privacy Policy, which is located here: https://www.tax1099.com/privacy-policy . The Zenwork Privacy Policy is subject to change at Zenwork’s discretion; however, Zenwork policy changes will not result in a material reduction in the level of protection provided for Your data during the period for which fees for the Services have been paid. You and Zenwork agree to comply with the terms of the Data Processing Addendum, found here: https://www.tax1099.com/dpa

You agree to provide any notices and obtain any consents related to Your use of the Services and Zenwork’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your data.

You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations, including without limitation regulations published by the Internal Revenue Service. Zenwork may, in its sole discretion, and with prior written notice to You, report actual or perceived violations of law to law enforcement or appropriate authorities. If Zenwork becomes aware of any potential violation of these Terms or the Privacy Policy, Zenwork may (but is not obligated to) conduct an investigation to determine the appropriate enforcement action, during which Zenwork may suspend services or terminate your account. In addition to any other rights afforded to Zenwork hereunder, Zenwork reserves the right to remove or disable access to any material that violates the foregoing restrictions. Zenwork shall have no liability to You in the event that Zenwork takes such action. You agree to defend and indemnify Zenwork against any claim arising out of a violation of Your obligations under this section, and against any fines, costs, damages and attorneys’ fees arising in connection with any governmental inquiry, action or enforcement relating to your use of the Services.

Zenwork may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve Your Zenwork service requests. The Tools will not collect, report or store any of Your data residing in the Service production environment, except as necessary to troubleshoot service requests or other problems in the Service. Data collected by the Tools (excluding production data) may also be used to assist in managing Zenwork’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, You may not access or use the Tools, and (b) You will not use or restore the tools from any tape backup at any time following termination hereof.

If Zenwork provides You with access to or use of any tools in connection with the Services, Your right to use such tools is governed by the license terms that Zenwork specifies for such tools; however, if Zenwork does not specify license terms for such tools, You shall have a non-transferable, non-exclusive, royalty-free limited right to use such Tools solely to facilitate Your administration and monitoring of Your Services environment, subject to these Terms. Any such tools are provided by Zenwork on an “as is; with all faults” basis and Zenwork does not provide technical support or offer any warranties or assurances for such Tools. Your right to use such tools will terminate upon the earlier of Zenwork’s notice (which may be through posting on any URL designated by Zenwork), the end of the Term of the Services, or the date that the license to use such Tools ends under the license terms specified for such tools.

Zenwork may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Your data and/or identify Your confidential information or include Your company’s name. Zenwork retains all intellectual property rights in such information.

The Services may enable You to add links to Web sites and access to content, products and Services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Zenwork is not responsible for any third-party Web sites or third-party content provided on or through the Services and You bear all risks associated with the access and use of such Web sites and third party content, products and Services.

You agree (i) that Zenwork may identify You as a recipient of Services and or use Your logo in sales presentations, marketing materials and press releases, and (ii) and may develop a brief customer profile for use by Zenwork on its websites for promotional purposes.

1.   Zenwork is an independent contractor, and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment-related taxes and insurance.

2.   You shall obtain at Your sole expense any rights and consents from third parties whose information is provided by You to Zenwork in connection with the Services as necessary for Zenwork and its subcontractors to perform the Services.

3.   The Quote and these Terms are governed by the substantive and procedural laws of Arkansas. You and Zenwork agree with and covenant to one another to submit to the exclusive jurisdiction of, and venue in, the courts in Fayetteville, Washington County, Arkansas in any dispute arising out of or relating to the Quote or this Agreement.

4.   If You have a dispute with Zenwork or if You wish to provide a notice under the Indemnification section of the Quote or these Terms, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to:

ZENWORK, INC.
1 EAST CENTER STREET
SUITE 250
FAYETTEVILLE, AR 72701
ATTENTION: LEGAL DEPARTMENT

Email: [email protected]

Zenwork may give notice applicable to Zenwork’s software as a service customer base by means of a general notice on the Zenwork portal for the Services, and notices specific to You by electronic mail to Your e-mail address on record in Zenwork’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in Zenwork’s account information.

5.You may not assign the Quote or these Terms, or any rights, interests or claims therein, or give or transfer the Services or an interest in them to another individual or entity. Zenwork may assign any Quote and these Terms to any acquirer of a controlling equity interest in Zenwork or its parent companies, or any acquirer of substantially all of Zenwork’s assets.

6.Except for actions for nonpayment of amounts owed to Zenwork or breach of Zenwork’s proprietary rights, no action, regardless of form, arising out of or relating to the Quote or these Terms may be brought by either Party more than two (2) years after the cause of action has accrued.

7. Zenwork may audit Your use of the Services. You agree to cooperate with Zenwork’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within 30 days of written notification any fees applicable to Your use of the Services in excess of Your rights as a result of the aforementioned audit. If You do not pay, Zenwork can terminate Your Services. You agree that Zenwork shall not be responsible for any of Your costs incurred in cooperating with the audit.

8. The Uniform Computer Information Transactions Act does not apply to the Quote or these Terms. You understand that Zenwork’s business partners, including any third-party firms retained by You to provide computer consulting Services, are independent of Zenwork and are not Zenwork’s agents. Zenwork is not liable for nor bound by any acts of any such business partner, unless the business partner is providing Services as an Zenwork subcontractor on an engagement ordered under these Terms.