Zappistore Standard Terms And Conditions

These Standard Terms and Conditions set out the basis on which ZappiStore, Inc. (“ZappiStore”), a company organized under the laws of The State of Delaware with offices at 51 Melcher St, Boston, MA 02110, will provide services to the Client. These Standard Terms and Conditions apply to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No variation to these Standard Terms and Conditions shall apply, unless set and agreed by the parties in writing.

1. Definitions

  • 1.1

    The definitions in this clause apply in the Agreement.

  • Agreement:

    means the agreement between the Client and ZappiStore comprising these Standard Terms and Conditions and the Statement of Work.

    Automated Research Program:

    means the program that enables the Client to bulk purchase a certain number of Research Projects in advance to enable its Authorised Users to initiate Research Projects via the Platform without having to follow the normal ordering process that involves individual payments being made in advance each time a Research Project is required.

    Authorized Users:

    means those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services.

    Branded Platform:

    means the Platform that is customised by ZappiStore for the Client to add Client Branding and to make such other configurations as are agreed by the parties in the applicable Statement of Work.

    Commencement Date:

    means the Commencement Date set out in the Contract Information Page.

    Client Group Company:

    means any subsidiary or holding company of the Client from time to time, and any subsidiary from time to time of a holding company of the Client, with holding company and subsidiary.

    Client Materials:

    means the advertisments, concepts, products, packaging, messages, straplines and any other data, information and materials inputted by or on behalf of the Client or Authorised Users in the use of the Services.

    Enhanced Reporting Module:

    means the functionality to cross-analyze results from multiple Reports over time.

    Fees:

    means the fees payable by the Client for the Services as detailed on the Platform or otherwise agreed by the parties in the applicable Statement of Work.

    Methodologies:

    means the research methods, algorithms, models, approaches that form part of the intellectual property of ZappiStore or its research partners.

    Modified Research Product:

    means a Research Product which is modified or customised for the Client.

    Platform:

    means ZappiStore’s platform at www.zappistore.com (or any other website notified to the Client by ZappiStore from time to time) or, where the Services include the provision of a Branded Platform, the Branded Platform provided to the Client by ZappiStore.

    Reports:

    means the reports generated by the Client via the Platform.

    Research Projects:

    means the research projects that are initiated by the Client via the Platform.

    Services:

    means the services provided by ZappiStore to the Client via the Platform under the Agreement as ordered by the Client via the Platform or otherwise agreed by the parties in a Statement of Work. The Services may include but not limited to the provision of the following:
    (a) Branded Platform;
    (b) Research Projects;
    (c) Automated Research Program;
    (d) Enhanced Reporting Module;
    (e) Modified Research Product.

    Statement of Work (SOW):

    means a quotation, order form, statement of work or similar document agreed by the parties (or by ZappiStore and a Client Group Company) in accordance with clause 2.2.

    Virus:

    means any thing or device (including any software, code, file or programme) that may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

  • 1.2

    Clause headings shall not affect the interpretation of the Agreement.

  • 1.3

    A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

  • 1.4

    A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

  • 1.5

    Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.

  • 1.6

    A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.

  • 1.7

    A reference to writing or written includes email, but not fax.

2. Provision of the Services

  • 2.1

    The Client may initiate Research Projects via the Platform, but any other Services must be agreed by ZappiStore and the Client in a Statement of Work.

  • 2.2

    Each Statement of Work shall be agreed in the following manner:

    • 2.2.1

      the Client shall request additional Services from ZappiStore;

    • 2.2.2

      ZappiStore shall, as soon as reasonably practicable, provide the Client with a draft Statement of Work setting out details of the Services, the related Fees and any additional information; and

    • 2.2.3

      the Client will sign the Statement of Work (signature may be by hand or by way of DocuSign or other electronic means).

  • 2.3

    Once a Statement of Work has been agreed and signed in accordance with clause 2.2.3, the Statement of Work will form part of the Agreement and ZappiStore will provide the Services set out in that Statement of Work in accordance with the terms of the Agreement and any additional terms agreed in the Statement of Work. In the event of conflict between the terms of the Statement of Work and the terms in the Agreement, the Statement of Work will prevail.

  • 2.4

    ZappiStore shall use commercially reasonable endeavors to make the Services available via the Platform 24 hours a day, seven days a week, except for periods of maintenance. ZappiStore will endeavor to keep any downtime as a result of maintenance to a minimum.

  • 2.5

    ZappiStore will, as part of the Services and at no additional cost to the Client, provide the Client with ZappiStore's standard technical support service (as amended by ZappiStore from time to time). Technical support includes the provision of bug-fixes and log-in / access problems but does not include training or support with using the Services. If the Client requires training and support with using the Services (for example, assistance in initiating Research Projects), the Client may purchase additional client support services which will be provided by ZappiStore’s Client Excellence Team at ZappiStore's then current rates.

3. Use Of The Services By The Client Group Companies

  • 3.1

    The rights granted under the Agreement (including without limitation the usage rights under clause 5) are granted to the Client only, and shall not be considered granted to any Client Group Company unless that Client Group Company has first entered into a Statement of Work directly with ZappiStore under which the Client Group Company agrees to be bound by the terms of the Agreement (including any subsequent amendments agreed by the parties) as if it is the Client.

  • 3.2

    Notwithstanding clause 3.1:

    • 3.2.1

      the Client shall ensure compliance with the terms of the Agreement by the Client Group Companies; and

    • 3.2.2

      the rights of ZappiStore and the Client to terminate, rescind or agree any variation, waiver or settlement under the Agreement are not subject to the consent of any Client Group Company.

4. Subscription Services

  • 4.1

    The provision of a Branded Platform or Enhanced Reporting Module (together the Subscription Services) may be made available to the Client on an annual subscription basis. Where this applies, the Client shall not be entitled to terminate the Subscription Services (other than in accordance with clause 11.2) prior to the end of the then applicable subscription year for those Subscription Services.

  • 4.2

    Access to the Subscription Services will (subject to earlier termination in accordance with the Agreement) automatically renew at the end of each subscription year unless terminated by either party giving the other not less than six months’ notice in writing to end on the last day of that subscription year

5. Use Of The Services

  • 5.1

    Subject to the Client paying the Fees and complying with the terms of the Agreement, ZappiStore hereby grants to the Client a non-exclusive, non-transferable right to use the Services and to permit its Authorised Users to use the Services solely for the Client's internal business operations.

  • 5.2

    In relation to the Authorised Users, the Client shall ensure that:

    • 5.2.1

      each Authorised User keeps a secure password for their use of the Services;

    • 5.2.2

      neither the Client nor its Authorised Users shall access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, age, religious belief, sexual orientation, disability; or (vi) in a manner that is otherwise illegal or causes damage or injury to any person or property and ZappiStore reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to the Services in the event of a beach of the provisions of this clause.

  • 5.3

    The Client shall not:

    • 5.3.1

      except as may be allowed by any applicable law that is incapable of exclusion by agreement between the parties attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to either machine or human-perceivable form all or any part of the Services; or

    • 5.3.2

      access all or any part of the Services in order to build a product or service which competes with the Services; or

    • 5.3.3

      use the Services to provide services to third parties; or

    • 5.3.4

      license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party.

  • 5.4

    The Client shall:

    • 5.4.1

      use all reasonable endeavors to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify ZappiStore;

    • 5.4.2

      provide ZappiStore with all necessary co-operation in relation to the Agreement and with such Client Materials, Client Branding and other information as may be required by ZappiStore in order to provide the Services;

    • 5.4.3

      comply with all applicable laws and regulations with respect to its activities under the Agreement;

    • 5.4.4

      carry out all other Client responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, ZappiStore may adjust any agreed timetable or delivery schedule as reasonably necessary;

    • 5.4.5

      ensure that the Authorised Users use the Services and the Reports in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User's breach of the Agreement;

    • 5.4.6

      ensure that its network and systems comply with the relevant specifications provided by ZappiStore from time to time; and

    • 5.4.7

      be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to ZappiStore's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.

6. Client Data And Branding

  • 6.1

    The Client shall own all right, title and interest in and to all of the Client Materials and Client Branding and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Materials and Client Branding.

  • 6.2

    The Client warrants to ZappiStore that it has all necessary rights to provide the Client Materials and Client Branding to ZappiStore and that the use by ZappiStore of the Client Materials and Client Branding in accordance with the Agreement will not infringe the Intellectual Property Rights or any other rights of any third party.

  • 6.3

    The Client hereby grants to ZappiStore a non-exclusive, non-transferable right to use the Client Materials and the Client Branding for the purpose of enabling ZappiStore to provide the Services to the Client in accordance with the Agreement.

  • 6.4

    The Client acknowledges and agrees that:

    • 6.4.1

      ZappiStore may include the Client's name or the Client Branding in its list of customers on its website or in any other promotional materials; and

    • 6.4.2

      ZappiStore may refer to the Client, orally or in writing, as a customer of the Services for promotional, marketing and financial reporting purposes.

  • 6.5

    If ZappiStore processes any personal data on the Client's behalf when performing its obligations under the Agreement, the parties record their intention that the Client shall be the data controller and ZappiStore shall be a data processor and in any such case:

    • 6.5.1

      the Client shall ensure that the Client is entitled to transfer the relevant personal data to ZappiStore so that ZappiStore may lawfully use, process and transfer the personal data in accordance with the Agreement on the Client's behalf;

    • 6.5.2

      the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

    • 6.5.3

      ZappiStore shall process the personal data only in accordance with the terms of the Agreement and any lawful instructions reasonably given by the Client from time to time; and

    • 6.5.4

      each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

7. Fees And Payment

  • 7.1

    Unless otherwise agreed in a Statement of Work, the Fees will be payable as follows:

    • 7.1.1

      the Fees for the Subscription Services will be invoiced and payable annually in advance; and

    • 7.1.2

      where the Fees are calculated on a time and materials basis the Fees will be invoiced at end of each month in which the Services are provided or upon completion of the applicable project (whichever is earlier); and

    • 7.1.3

      all others Fees will be invoiced when the Client orders the applicable Services.

  • 7.2

    Where the Client operates a purchase order system and requires ZappiStore to include the Client’s purchase order reference on its invoices, the Client will ensure that ZappiStore is provided with the necessary purchase order details in good time to enable ZappiStore to issue its invoices in accordance with clause 7.1 or the applicable Statement of Work. Where the Client does not provide the purchase order details to ZappiStore in accordance with this clause 7.2, the Client shall not be entitled to withhold payment on the grounds that the purchase order number was not included on the invoice.

  • 7.3

    Unless otherwise agreed by the parties in writing, all Fees:

    • 7.3.1

      shall be payable within 30 days of the date of invoice (provided that where payment is due in advance the Client shall ensure that payment is received before the date on which the Client wishes to use the Services);

    • 7.3.2

      shall be payable in the currency stated on the Platform or (if different) in ZappiStore’s quote;

    • 7.3.3

      are, unless otherwise expressly stated in the Agreement, non-cancellable and non-refundable; and

    • 7.3.4

      unless otherwise stated, ZappiStore’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). The Client is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on ZappiStore’s net income or property. If ZappiStore has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ZappiStore with a valid tax exemption certificate authorized by the appropriate taxing authority.

  • 7.4

    If ZappiStore has not received payment by the due date, and without prejudice to any other rights and remedies of ZappiStore:

    • 7.4.1

      ZappiStore may, without liability to the Client, disable the Client's password, account and access to all or part of the Services and ZappiStore shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and interest shall accrue on a daily basis on such due amounts at the lower of a rate of 1.5% per month or the maximum rate permitted by law; and all fees and costs (including reasonable attorneys’ fees, court costs and collection agency fees) incurred in seeking collection of such overdue amounts.

  • 7.5

    ZappiStore shall be entitled to increase the Fees for Research Projects stated on the Platform at any time and the Fees payable by the Client will be the Fees stated on the Platform at the time the Client initiates the Research Project. Where ZappiStore has agreed Fees with the Client in a Statement of Work, ZappiStore shall be entitled to increase such Fees by giving the Client not less than 30 days’ notice save that where the Fees relate to Subscription Services, the fee increase will not apply until the next subscription year for those Subscription Services.

8. Proprietary Rights

  • 8.1

    The Client acknowledges and agrees that ZappiStore and/or its licensors own all Intellectual Property Rights in the Services, the Methodologies and the Reports (excluding any Client Materials and Client Branding in those Reports). Except as expressly stated herein, the Agreement does not grant the Client any rights to the Intellectual Property Rights or any other rights or licences in respect of the Services, the Methodologies or the Reports.

  • 8.2

    ZappiStore grants the Client and its Authorised Users the right to use the Services to generate Reports and to use, copy and distribute such Reports for the Client’s internal business purposes provided that the Client does not remove any watermarks, logos or other copyright notices from such Reports.

  • 8.3

    ZappiStore confirms that it has all the rights in relation to the Services, the Methodologies and the Reports that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.

9. Confidentiality

  • 9.1

    Each party undertakes that it shall not at any time during the Agreement, and for a period of five years after termination of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 9.2.

  • 9.2

    Each party may disclose the other party's confidential information:

    • 9.2.1

      to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 9; and

    • 9.2.2

      as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

  • 9.3

    The Client acknowledges that the initiation of Research Projects will involve the Client Materials which is input by or on behalf of the Client and its Authorised Users in relation to those Research Projects being made available to third parties to enable the performance of the Research Projects. The Client acknowledges that such third parties will not be considered to be representatives for ZappiStore for the purposes of the Agreement and ZappiStore will not be responsible for the acts and omissions of those third parties.

  • 9.4

    No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.

  • 9.5

    The Client acknowledges and agrees that ZappiStore shall be entitled to retain and use both during and after the term of the Agreement any information and data received or generated from the use of the Services on an anonymised, de-identified basis which does not identify the Client or its products for such proposes as ZappiStore may require including for producing reports, trends analysis, forecasting, monitoring, analysis and operational purposes and for the avoidance of doubt Zappistore will own such information and data.

10. Limitation Of Liability And Indemnification

  • 10.1

    This clause 10 sets out the entire financial liability of ZappiStore (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:

    • 10.1.1

      arising under or in connection with the Agreement;

    • 10.1.2

      in respect of any use made by the Client of the Services and Reports or any part of them; and

    • 10.1.3

      in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

  • 10.2

    Except as expressly and specifically provided in the Agreement:

    • 10.2.1

      the Client assumes sole responsibility for results obtained from the use of the Services and the Reports by the Client, and for all conclusions drawn from such use. ZappiStore shall have no liability for any damage caused by errors or omissions in any Client Materials, Client Branding or any other information, instructions or scripts provided to ZappiStore by the Client in connection with the Services, or any actions taken by ZappiStore at the Client's direction;

    • 10.2.2

      the Client understands that ZappiStore is an aggregator and provider of data and information (including opinions) for general information purposes only and does not provide marketing, planning, commercial, financial, tax and accounting, legal or other professional advice. The Client acknowledges that ZappiStore is not responsible for any loss or damage suffered by the Client resulting from any decisions which the Client takes as a result of using the Services or Reports and the Client agrees that it uses the Services and Reports at its own risk in these respects;

    • 10.2.3

      ZappiStore does not warrant that the Client's use of the Services will be uninterrupted or error-free; or that the Services, Reports and/or the information obtained by the Client through the Services will be delivered free of any inaccuracies, omissions or errors or will meet the Client's requirements;

    • 10.2.4

      ZappiStore is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Reports may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and

    • 10.2.5

      the Services and the Reports are provided to the Client on an "as is" basis.

  • 10.3

    Nothing in the Agreement excludes the liability of ZappiStore:

    • 10.3.1

      for death or personal injury caused by ZappiStore's negligence; or

    • 10.3.2

      for fraud or fraudulent misrepresentation.

  • 10.4

    Subject to clause 10.2 and clause 10.3:

    • 10.4.1

      ZappiStore shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and

    • 10.4.2

      ZappiStore’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to an amount equal to the fees paid by the Client during the 12 month period immediately preceding the date on which the claim arose of $500,000, whichever is lower.

    • 10.4.3

      Except as otherwise specifically provided herein and to the maximum extent permitted by law, ZappiStore expressly disclaims any and all warranties, conditions, representations and guarantees with respect to the Services, platform and products, whether express or implied, arising by law, usage of trade, course of dealing or course of performance, prior oral or written statements or otherwise, including without limitation any warranty of merchantability or fitness for a particular purpose. ZappiStore does not warrant the performance or results client may obtain by receiving the Services or using the platform or any product. No representation or other affirmation of fact, including, without limitation, statements regarding capacity, suitability for use or performance of the platform or any product not contained in this Agreement shall be deemed a warranty by ZappiStore.

    • 10.4.4

      Client shall defend, indemnify, and hold ZappiStore, its Affiliates, and their respective officers, directors, agents and employees, harmless against any loss incurred in connection with any Claim made or brought against ZappiStore by a third party alleging that: (a) Client has used the Platform or any Product in a way that violates Applicable Law or the Agreement; and (b) Data, and/or any materials provided to ZappiStore necessary to perform the Services, infringe upon or violate the intellectual property, privacy, or other rights of a third party.

11. Term And Termination

  • 11.1

    The Agreement shall commence on the Commencement Date and unless otherwise terminated in accordance with the terms of the Agreement shall continue thereafter until terminated by either party giving the other not less than six months’ notice provided that where the Client is receiving Subscription Services, neither party shall be entitled to terminate the Agreement in accordance with this clause 11.1 until those Subscription Services have been terminated in accordance with clause 4.2. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Neither party will have any liability resulting from the termination of this Agreement in accordance with its terms.

  • 11.2

    Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

    • 11.2.1

      the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than thirty days after being notified in writing to make such payment;

    • 11.2.2

      the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty days after being notified in writing to do so;

    • 11.2.3

      the other party commences a voluntary case under Title 11 of the United States Code or the corresponding provisions of any successor laws. All rights and licenses granted to ZappiStore under or pursuant to this Agreement are, and will otherwise be deemed to be, for purposes of section 365(n) of the United States Bankruptcy Code (the “Code”), licenses to rights in “intellectual property,” as defined under the Code. The parties hereto further agree that, in the event of the commencement of bankruptcy proceedings by or against Client under the Code, ZappiStore will be entitled, at its option, to retain all of its rights under this Agreement pursuant to Section 365(n) of the Code;

    • 11.2.4

      anyone commences an involuntary case against the other party under title 11 of the United States Code or the corresponding provisions of any successor laws and either (A) the case is not dismissed by midnight at the end of the 60th day after commencement or (B) the court before which the case is pending issues an order for relief or similar order approving the case;

    • 11.2.5

      a court of competent jurisdiction appoints, or the other party makes an assignment of all or substantially all of its assets to a custodian (as that term is defined in Title 11 of the United States Code or the corresponding provisions of any successor laws) for the company of all or substantially all of its assets;

    • 11.2.6

      the other party fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.

  • 11.3

    On termination of the Agreement for any reason:

    • 11.3.1

      the Client shall immediately cease all use of the Services;

    • 11.3.2

      save where the Agreement is terminated by the ZappiStore in accordance with clause 11.2, ZappiStore will enable the Client to access the Platform for a period of 14 days after termination of the Agreement for the sole purpose of downloading any Reports which are held on the Platform. Following expiry of this period (or immediately where the Agreement is terminated by ZappiStore in accordance with clause 11.2), ZappiStore may destroy or otherwise dispose of any Reports and Client Materials in its possession; and

    • 11.3.3

      any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

12. Force Majeure

ZappiStore shall have no liability to the Client under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ZappiStore or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of ZappiStores or sub-contractors, provided that the Client is notified of such an event and its expected duration.

13. General

  • 13.1

    Variation

    No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  • 13.2

    Waiver

    No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  • 13.3

    Rights and Remedies

    Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  • 13.4

    Severance

    • 13.4.1

      If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

    • 13.4.2

      If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

  • 13.5

    Entire Agreement

    • 13.5.1

      The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

    • 13.5.2

      Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.

  • 13.6

    Assignment

    The Client shall not, without the prior written consent of ZappiStore, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void. Notwithstanding the foregoing, ZappiStore may assign this Agreement to an affiliated company another entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities or assets of ZappiStore. All rights, benefits, and protections granted to ZappiStore pursuant to this Agreement extend to its Affiliates.

  • 13.7

    No Partnership, Agency or Exclusivity

    • 13.7.1

      Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

    • 13.7.2

      Nothing in the Agreement shall prevent ZappiStore from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.

  • 13.8

    Third Party Rights

    The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns).

  • 13.9

    Notices

    • 13.9.1

      Any notice, request, approval or written consent required under the Agreement shall be

    • 13.9.2

      sufficiently given if in writing and delivered in person or mailed (certified or registered mail, return receipt requested) by one party to the other at the address set forth on the first page hereof or to such other address as the recipient may subsequently furnish in writing.

  • 13.10

    Governing Law and Jurisdiction

    • 13.10.1

      The Agreement, and all claims arising out of or relating to its subject matter, shall be exclusively governed by and construed under the internal laws of the State of Delaware, without regard to its conflicts of laws rules. Each party consents to the exclusive jurisdiction of the state and federal courts located in the State of Delaware to adjudicate any claim arising out of or relating to the Agreement or its subject matter.

    • 13.10.2

      EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER.