CONTRACT 6383 Vender AgreementAgreement No. 6383
ZOOM
EFFECTIVE: April 13, 2022
IMPORTANT READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND
PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE
"SERVICES") OF ZOOM VIDEO COMMUNICATIONS, INC. AND ITS AFFILIATES ("ZOOM")
IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE
TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE
REVIEW THOROUGHLY BEFORE ACCEPTING.
BY CLICKING/CHECKING THE "I AGREE" BUTTON/BOX, ACCESSING THE ZOOM
WEBSITE OR BY UTILIZING THE ZOOM SERVICES YOU AGREE TO BE BOUND BY
THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED
POLICIES (THE "AGREEMENT" OR "TOS"). THE ZOOM SERVICES ARE NOT AVAILABLE
TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF
SERVICE.
Zoom will provide the Services, and you may access and use the Services, in accordance
with this Agreement. Zoom may provide any of the Services hereunder through any of its
Affiliates. If You order Services through an on-line registration page or an order form (each
an "Order Form"), the Order Form may contain additional terms and conditions and
information regarding the Services you are ordering. Unless otherwise expressly set forth
in any such additional terms and conditions applicable to the specific Service which You
choose to use, those additional terms are hereby incorporated into this Agreement in
relation to Your use of that Service.
System ,equh*ement . Use of the Services requires one or more compatible devices,
Internet access (fees may apply), and certain software (fees may apply), and may require
obtaining updates or upgrades from time to time. Because use of the Services involves
hardware, software, and Internet access, Your ability to access and use the Services may be
affected by the performance of these factors. High speed Internet access is recommended.
You acknowledge and agree that such system requirements, which may be changed from
time to time, are Your responsibility.
1. DEFINITIONS. The following definitions will apply in this Agreement, and any
reference to the singular includes a reference to the plural and vice versa. Service
specific definitions are found in the Services Description located
at www.zoom.us/services-description.
"Affiliate" means, with respect to a Party, any entity that directly or indirectly
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controls, is controlled by or is under common control with that Party. For purposes
of this Agreement, "control" means an economic or voting interest of at least fifty
percent (50%) or, in the absence of such economic or voting interest, the power to
direct or cause the direction of the management and set the policies of such entity.
"End User" means a Host or Participant (as defined in the Services Description) who
uses the Services.
"Initial Subscription Term" means the initial subscription term for a Service as
specified in an Order Form.
"Service Effective Date" means the date an Initial Subscription Term begins as
specified in an Order Form.
"Renewal Term" means the renewal subscription term for a Service commencing
after the Initial Subscription Term or another Renewal Term as specified in an
Order Form.
"Taxes and Fees" and "Taxes or Fees" means all applicable sales, use, environmental
or regulatory taxes, VAT, fees, duties (including customs duties), charges,
surcharges or assessments levied on the provision of Services to Customer
(exclusive of any income tax imposed on Zoom).
"VAT" means any value added tax, and any other tax of a similar nature, whether
imposed in a Member State of the European Union in substitution for, or levied in
addition to, such tax, or imposed elsewhere, any Goods and Services Tax,
PIS/COFINS, any similar indirect Tax or any Tax analogous thereto imposed in
connection with, or otherwise relating to, the Services rendered by Zoom to
Customer.
"Your Data" means information provided to Zoom so that Zoom can fulfill the terms
of the Agreement and provide access to the Services (e.g., company name, billing
address, taxpayer ID number, VAT registration number, contact name and
information). You are solely responsible for the accuracy of Your Data, and Zoom
has no liability whatsoever for errors and omissions in Your Data.
2. SERVICES. Zoom will provide the Services as described on the Order Form, and
standard updates to the Services that are made generally available by Zoom during
the term. Zoom may, in its sole discretion, discontinue the Services or modify the
features of the Services from time to time without prior notice.
a. Beta Services. Zoom may, from time to time, offer access to services that are
classified as Beta version. Access to and use of Beta versions may be subject
to additional agreements. Zoom makes no representations that a Beta
version will ever be made generally available and reserves the right to
discontinue or modify a Beta version at any time without notice. Beta
versions are provided AS IS, may contain bugs, errors or other defects, and
Your use of a Beta version is at Your sole risk.
3. USE OF SERVICES AND YOUR RESPONSIBILITIES. You may only use the Services
pursuant to the terms of this Agreement. You are solely responsible for Your and
Your End Users' use of the Services and shall abide by, and ensure compliance with,
all Laws in connection with Your and each End User's use of the Services, including
but not limited to Laws related to recording, intellectual property, privacy and
export control. Use of the Services is void where prohibited.
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a. Registration Information. You may be required to provide information
about Yourself in order to register for and/or use certain Services. You agree
that any such information shall be accurate. You may also be asked to choose
a user name and password. You are entirely responsible for maintaining the
security of Your user name and password and agree not to disclose such to
any third party.
b. Your Content. You agree that You are solely responsible for the content
("Content") sent or transmitted by You or displayed or uploaded by You in
using the Services and for compliance with all Laws pertaining to the
Content, including, but not limited to, Laws requiring You to obtain the
consent of a third party to use the Content and to provide appropriate
notices of third party rights. You represent and warrant that You have the
right to upload the Content to Zoom and that such use does not violate or
infringe on any rights of any third party. Under no circumstances will Zoom
be liable in any way for any (a) Content that is transmitted or viewed while
using the Services, (b) errors or omissions in the Content, or (c) any loss or
damage of any kind incurred as a result of the use of, access to, or denial of
access to Content. Although Zoom is not responsible for any Content, Zoom
may delete any Content, at any time without notice to You, if Zoom becomes
aware that it violates any provision of this Agreement, or any law. You retain
copyright and any other rights You already hold in Content which You
submit, post or display on or through, the Services.
c. Recordings. You are responsible for compliance will all recording laws. The
host can choose to record Zoom Meetings and Zoom Webinars. By using the
Services, you are giving Zoom consent to store recordings for any or all Zoom
meetings or webinars that you join, if such recordings are stored in our
systems. You will receive a notification (visual or otherwise) when recording
is enabled. If you do not consent to being recorded, you can choose to leave
the meeting or webinar.
d. Prohibited Use. You agree that You will not use, and will not permit any End
User to use, the Services to: (i) modify, disassemble, decompile, prepare
derivative works of, reverse engineer or otherwise attempt to gain access to
the source code of the Services; (ii) knowingly or negligently use the Services
in a way that abuses, interferes with, or disrupts Zoom's networks, Your
accounts, or the Services; (iii) engage in activity that is illegal, fraudulent,
false, or misleading, (iv) transmit through the Services any material that may
infringe the intellectual property or other rights of third parties; (v) build or
benchmark a competitive product or service, or copy any features, functions
or graphics of the Services; or (vi) use the Services to communicate any
message or material that is harassing, libelous, threatening, obscene,
indecent, would violate the intellectual property rights of any party or is
otherwise unlawful, that would give rise to civil liability, or that constitutes
or encourages conduct that could constitute a criminal offense, under any
applicable law or regulation; (vii) upload or transmit any software, Content
or code that does or is intended to harm, disable, destroy or adversely affect
performance of the Services in any way or which does or is intended to harm
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or extract information or data from other hardware, software or networks of
Zoom or other users of Services; (viii) engage in any activity or use the
Services in any manner that could damage, disable, overburden, impair or
otherwise interfere with or disrupt the Services, or any servers or networks
connected to the Services or Zoom's security systems. (ix) use the Services in
violation of any Zoom policy or in a manner that violates applicable law,
including but not limited to anti-spam, export control, privacy, and anti-
terrorism laws and regulations and laws requiring the consent of subjects of
audio and video recordings, and You agree that You are solely responsible for
compliance with all such laws and regulations.
e. Limitations on Use. You may not reproduce, resell, or distribute the Services
or any reports or data generated by the Services for any purpose unless You
have been specifically permitted to do so under a separate agreement with
Zoom. You may not offer or enable any third parties to use the Services
purchased by You, display on any website or otherwise publish the Services
or any Content obtained from a Service (other than Content created by You)
or otherwise generate income from the Services or use the Services for the
development, production or marketing of a service or product substantially
similar to the Services.
4. RESPONSIBILITY FOR END USERS. You are responsible for the activities of all End
Users who access or use the Services through your account and you agree to ensure
that any such End User will comply with the terms of this Agreement and any Zoom
policies. Zoom assumes no responsibility or liability for violations. If You become
aware of any violation of this Agreement in connection with use of the Services by
any person, please contact Zoom at trust@zoom.us. Zoom may investigate any
complaints and violations that come to its attention and may take any (or no) action
that it believes is appropriate, including, but not limited to issuing warnings,
removing the content or terminating accounts and/or User profiles. Under no
circumstances will Zoom be liable in any way for any data or other content viewed
while using the Services, including, but not limited to, any errors or omissions in any
such data or content, or any loss or damage of any kind incurred as a result of the
use of, access to, or denial of access to any data or content.
S. ZOOM OBLIGATIONS FOR CONTENT. Zoom will maintain reasonable physical and
technical safeguards to prevent unauthorized disclosure of or access to Content, in
accordance with industry standards. Zoom will notify You if it becomes aware of
unauthorized access to Content. Zoom will not access, view or process Content
except (a) as provided for in this Agreement and in Zoom's Privacy Statement; (b) as
authorized or instructed by You, (c) as required to perform its obligations under this
Agreement; or (d) as required by Law. Zoom has no other obligations with respect
to Content.
6. ELIGIBILITY. You affirm that You are at least 16 years of age and are otherwise fully
able and competent to enter into the terms, conditions, obligations, affirmations,
representations, and warranties set forth in this Agreement, and to abide by and
comply with this Agreement. Your access may be terminated without warning if we
believe that You are under the age of 16 or are otherwise ineligible.
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7. INTENDED USE; RESTRICTION ON USE BY CHILDREN. The Services are intended
for business use. You may choose to use the Services for other purposes, subject to
the terms and limitations of this Agreement. Zoom is not intended for use by
individuals under the age of 16, unless it is through a School Subscriber (as that
term is defined in the Services Description) using Zoom for Education (K-12).
8. CHARGES AND CANCELLATION. You agree that Zoom may charge to Your credit
card or other payment mechanism selected by You and approved by Zoom ("Your
Account") all amounts due and owing for the Services. All payments made by you to
us under this Agreement will be made free and clear of any deduction or
withholding, as may be required by law. If any such deduction or withholding
(including but not limited to domestic or cross -border withholding taxes) is
required on any payment, you will pay such additional amounts as are necessary so
that the net amount received by us is equal to the amount then due and payable
under this Agreement. We will provide you with such tax forms as are reasonably
requested in order to reduce or eliminate the amount of any withholding or
deduction for taxes in respect of payments made under this Agreement. Zoom may
change prices at any time, including changing from a free service to a paid service
and charging for Services that were previously offered free of charge; provided,
however, that Zoom will provide you with prior notice and an opportunity to
terminate Your Account if Zoom changes the price of a Service to which you are
subscribed and will not charge you for a previously free Service unless you have
been notified of the applicable fees and agreed to pay such fees. You agree that in
the event Zoom is unable to collect the fees owed to Zoom for the Services through
Your Account, Zoom may take any other steps it deems necessary to collect such
fees from You and that You will be responsible for all costs and expenses incurred
by Zoom in connection with such collection activity, including collection fees, court
costs and attorneys' fees. You further agree that Zoom may collect interest at the
lesser of 1.5% per month or the highest amount permitted by law on any amounts
not paid when due. You may cancel your subscription at any time. If you cancel, you
will not be billed for any additional terms of service, and service will continue until
the end of the current Subscription Term. If you cancel, you will not receive a refund
for any service already paid for.
9. TAXES. Unless stated otherwise, all prices and fees shown by Zoom are exclusive of
Taxes and regulatory fees, service, service fees, set up fees, subscription fees, or any
other fee or charge associated with Your Account. Where applicable, Taxes and
regulatory fees will be charged on the invoices issued by Zoom in accordance with
local laws and regulations. Zoom, in its sole discretion, will calculate the amount of
Taxes due. The taxes and regulatory fees charged can be changed without notice.
a. VAT Invoices. If required by Law, Zoom will issue a VAT invoice, or a
document that the relevant taxing authority will treat as a VAT invoice, to
You. You accept that this invoice may be issued electronically.
b. Tax exemptions. If You are exempt from any Tax or Fee, You will provide
Zoom with all appropriate tax exemption certificates, and/or other
documentation satisfactory to the applicable taxing authorities to
substantiate such exemption status. Zoom reserves the right to review and
validate tax exemption documentation. In the event that the tax exemption
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documentation is not valid, Zoom reserves the right to charge applicable
taxes to You.
c. Payment of Taxes and Fees. You will pay to Zoom any applicable Taxes and
Fees. You are solely responsible for paying any and all Taxes and Fees owing
as a result of Zoom's provision of the Services to You. If You are required to
pay any Taxes and Fees, You shall pay such amounts with no reduction or
offset in amounts payable to Zoom hereunder and You will pay and bear such
additional amount, as shall be necessary such that Zoom receives the full
amount of payment required as if no such reduction or offset were required.
d. VAT due by the customer. In the event Taxes and Fees are due towards the
taxing authorities by You instead of Zoom, through the reverse charge or
other similar mechanism, You will provide Zoom with all appropriate
evidence for Zoom to demonstrate Your business nature, such as a valid VAT
registration number (or similar information required under the relevant VAT
laws). Zoom reserves the right to review and validate your VAT registration
number. In the event that the VAT registration number is not valid, Zoom
reserves the right to nevertheless charge applicable VAT to You. For the
avoidance of doubt, if VAT is due by You to a taxing authority, through the
reverse charge or other similar mechanism, You are solely responsible for
paying those amounts to the relevant taxing authority such that Zoom
receives the full amount of payment required.
e. Tax determination. Tax determination is principally based on the location
where the Customer has established its business based on the Customer
Data, or for individuals where that individual permanently resides. This will
be defined by Zoom as Your'Sold To' address. Zoom reserves the right to
cross reference this location against other available evidence to validate
whether Your location is accurate. In the event that Your location is
inaccurate, Zoom reserves the right to charge You any outstanding Taxes and
Fees.
f. Use and enjoyment. If You purchase Zoom Services, and those Services are
used and enjoyed by a subsidiary of You in a country that is different to Your
location as determined by Section 9(e) of this TOS, You confirm that where
required You will treat this as a supply to Your subsidiary. In the event You
purchase Services and those Services are used and enjoyed by a branch or
individual in a country that is different to Your location as determined by
Section 9 (e) of this TOS, You acknowledge that You will inform Zoom of the
Services that have been allocated and You acknowledge that Zoom reserves
the right to charge Taxes and Fees based on the use and enjoyment of those
Services.
10. TERMINATION. The Zoom website contains information on how to terminate Your
Account. If you have purchased a Service for a specific term, such termination will
be effective on the last day of the then -current term. Your Order Form may provide
that a Renewal Term will begin automatically unless either party provides notice of
termination at least thirty (30) days prior to the commencement of the next
Renewal Term. If You fail to comply with any provision of this Agreement, Zoom
may terminate this Agreement immediately and retain any fees previously paid by
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You. Sections 1 and 3 through 22, inclusive, shall survive any termination of this
Agreement. Upon any termination of this Agreement, You must cease any further
use of the Services. If at any time You are not happy with the Services, Your sole
remedy is to cease using the Services and follow this termination process.
11. PROPRIETARY RIGHTS. Zoom and/or its suppliers, as applicable, retain ownership
of all proprietary rights in the Services and in all trade names, trademarks, service
marks, logos, and domain names ("Zoom Marks") associated or displayed with the
Services. You may not frame or utilize framing techniques to enclose any Zoom
Marks, or other proprietary information (including images, text, page layout, or
form) of Zoom without express written consent. You may not use any meta tags or
any other "hidden text" utilizing Zoom Marks without Zoom's express written
consent.
12. CONFIDENTIALITY. Each party agrees to regard and preserve as confidential all
non-public information provided by the other party relating to the business,
systems, operations, strategic plans, clients, pricing (including, but not limited to,
the pricing terms herein), methods, processes, financial data, programs, and/or
products of the other party in any form, that are designated as "confidential," or a
reasonable person knows or reasonably should understand to be confidential
(herein "Confidential Information"). For purposes of the Agreement, Your
Confidential Information shall include Your Data, and any information disclosed to
Zoom by You relating to the business, systems, operations, strategic plans, clients,
pricing, methods, processes, financial data, programs, and/or products of You. Each
party agrees to limit its disclosure of the other party's Confidential Information to as
few persons as possible and only to those persons with a need to know that are its
or its Affiliates' personnel and subject to an obligation to keep such information
confidential. Except as needed to fulfill their respective obligations under the
Agreement, neither party shall, without first obtaining the other party's prior
written consent, disclose to any person, firm or enterprise, except as expressly
permitted herein, or use for its own benefit, or the benefit of a third party, the
Confidential Information of the other party.
a. Exclusions. "Confidential Information" shall not include Content or
information that (a) is already rightfully known to a party at the time it is
obtained from the other party, free from any obligation to keep such
information confidential; (b) is or becomes publicly known or available
through no wrongful act of a party; (c) is rightfully received from a third
party without restriction and without breach of this TOS; or (d) is developed
by a party without the use of any proprietary, non-public information
provided by the other party under the Agreement.
b. Exception. Either party may disclose Confidential Information where
required by law, regulation, or court order, provided that the party subject to
such law, regulation or court order shall, where permitted, notify the other
party of any such use or requirement prior to disclosure in order to afford
such other party an opportunity to seek a protective order to prevent or limit
disclosure of the information to third parties.
c. Confidentiality Period and Obligations. The confidentiality obligations set
forth in this section of the TOS shall remain in effect for a period of five (5)
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years from the disclosure of the information. Both parties agree (a) to take
reasonable steps to protect the other party's Confidential Information, and
these steps must be at least as protective as those the receiving party takes to
protect its own Confidential Information, and no less than a reasonable
standard of care; (b) to notify the disclosing party promptly upon discovery
of any unauthorized use or disclosure of Confidential Information; and (c) in
the event of any unauthorized disclosure by a receiving party, to cooperate
with the disclosing party to help regain control of the Confidential
Information and prevent further unauthorized use or disclosure of it.
13. COPYRIGHT. You may not post, modify, distribute, or reproduce in any way
copyrighted material, trademarks, rights of publicity or other proprietary rights
without obtaining the prior written consent of the owner of such proprietary rights.
Zoom may deny access to the Services to any User who is alleged to infringe another
party's copyright. Without limiting the foregoing, if You believe that Your copyright
has been infringed, please notify Zoom as specified here.
14. EXPORT RESTRICTIONS.You acknowledge that the Services, or a portion thereof,
are subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774, of the
United States and may be subject to other applicable country export control and
trade sanctions laws ("Export Control and Sanctions Laws"). Zoom will provide the
U.S. export classification(s) applicable to its Services upon request. You and Your
End Users may not access, use, export, re-export, divert, transfer or disclose any
portion of the Services or any related technical information or materials, directly or
indirectly, in violation of Export Control and Sanctions Laws. You represent and
warrant that: (i) You and Your End Users (a) are not citizens of, or located within, a
country or territory that is subject to U.S. trade sanctions or other significant trade
restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the
Crimea, Donetsk and Luhansk regions of Ukraine) and that You and Your End Users
will not access or use the Services, or export, re-export, divert, or transfer the
Services, in or to such countries or territories; (b) are not persons, or owned 50% or
more, individually or in the aggregate by persons, identified on the U.S. Department
of the Treasury's Specially Designated Nationals and Blocked Persons List or
Foreign Sanctions Evaders Lists; and (c) are not persons on the U.S. Department of
Commerce's Denied Persons List, Entity List, or Unverified List, or U.S. Department
of State proliferation -related lists; (ii) You and Your End Users located in China,
Russia, or Venezuela are not Military End Users and will not put Zoom's Services to a
Military End Use, as defined in 15 C.F.R. 744.21; (iii) no Content created or
submitted by You or Your End Users is subject to any restriction on disclosure,
transfer, download, export or re-export under the Export Control and Sanctions
Laws; and (iv) You and Your End Users will not take any action that would
constitute a violation of, or be penalized under, U.S. antiboycott laws administered
by the U.S. Department of Commerce or the U.S. Department of the Treasury. You
are solely responsible for complying with the Export Control and Sanctions Laws
and monitoring them for any modifications.
15. NO HIGH RISK USE. The Services are not designed or licensed for use in hazardous
environments requiring fail-safe controls, including without limitation operation of
nuclear facilities, aircraft navigation/communication systems, air traffic control, and
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life support or weapons systems. The Services shall not be used for or in any HIGH
RISK environment.
16. INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this
Agreement, or any transfer, sublicensing, copying or disclosure of technical
information or materials related to the Services, may cause irreparable injury to
Zoom, its Affiliates, suppliers and any other party authorized by Zoom to resell,
distribute, or promote the Services ("Resellers"), and under such circumstances
Zoom, its Affiliates, suppliers and Resellers will be entitled to equitable relief,
without posting bond or other security, including, but not limited to, preliminary
and permanent injunctive relief.
17. NO WARRANTIES.YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE
PROVIDED "AS IS" AND ZOOM, ITS AFFILIATES, SUPPLIERS AND RESELLERS
EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON -INFRINGEMENT. ZOOM, ITS
AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR
REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM
THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY
INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES
WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY,
SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY
MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH
THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF
THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE
SERVICES REMAINS WITH YOU. ZOOM DOES NOT ASSUME ANY RESPONSIBILITY
FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN
USERS. ZOOM CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC
RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.
18. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Zoom, its
affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers
from any and all third party claims, liability, damages and/or costs (including, but
not limited to, attorneys' fees) arising from Your use of the Services, Your violation
of this Agreement or the infringement or violation by You or any other user of Your
account, of any intellectual property or other right of any person or entity or
applicable law.
19. LIMITATION OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL ZOOM OR ITS AFFILIATES, SUPPLIERS OR
RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY
OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY
LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE
SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER
SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE)
CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ZOOM, ITS AFFILIATES,
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SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN ANY CASE, ZOOM'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS'
MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY
CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO
THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE
TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE
TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion
or limitation of liability, the above limitation may not apply to You.
20. AGREEMENT TO ARBITRATE; WAIVER OF CLASS ACTION. If You are located in
the United States, You agree to resolve disputes only on an individual basis, through
arbitration pursuant to the provisions of Exhibit A. The parties expressly waive
any right to bring any action, lawsuit, or proceeding as a class or collective
action, private attorney general action, or any other proceeding in which any
party acts or proposes to act in a representative capacity.
21. PRIVACY AND OTHER POLICIES. Use of the Services is also subject to Zoom's
Privacy Statement, a link to which can be found by selecting "Privacy and Legal
Policies" in the footer of Zoom's website. The Privacy Statement, and all policies
noticed at www.zoom.us/legal are incorporated into this Agreement by this
reference. Furthermore, if Your Use of the Services requires Zoom to process any
personally identifiable information ("PII" or "Personal Data") Zoom shall do so at all
times in compliance with our Zoom Global Data Processing
Addendum https://zoom.us/docs/doc/Zoom_GLOBAL_DPA.pdf is incorporated in
these Terms of Service. Additionally, You understand and agree that Zoom may
contact You via e-mail or otherwise with information relevant to Your use of the
Services, regardless of whether You have opted out of receiving marketing
communications or notices.
22. MISCELLANEOUS
a. Choice of Law and Forum. This Agreement shall be governed by and
construed under the laws of the State of California, U.S.A., as applied to
agreements entered into and to be performed in California by California
residents. Except as provided in Exhibit A, the Parties consent to the
exclusive jurisdiction and venue of the state courts located in and serving
Santa Clara County, California and the federal courts in the Northern District
of California.
b. Contracting Entity. In the event Your Zoom account reflects a bill to/sold to
address in India, the contracting entity under these TOS shall be Zoom's
Affiliate, ZVC India Pvt. Ltd.
c. Waiver and Severability. Failure by either Party to exercise any of its rights
under, or to enforce any provision of, this Agreement will not be deemed a
waiver or forfeiture of such rights or ability to enforce such provision. If any
provision of this Agreement is held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, that provision will be amended to achieve as
nearly as possible the same economic effect of the original provision and the
remainder of this Agreement will remain in full force and effect.
d. General Provisions. This Agreement embodies the entire understanding
and agreement between the Parties respecting the subject matter of this
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Agreement and supersedes any and all prior understandings and agreements
between the Parties respecting such subject matter, except that if You or
Your company have executed a separate written agreement or you have
signed an order form referencing a separate agreement governing your use
of the Services, then such agreement shall control to the extent that any
provision of this Agreement conflicts with the terms of such agreement.
Zoom may elect to change or supplement the terms of this Agreement from
time to time at its sole discretion. Zoom will exercise commercially
reasonable business efforts to provide notice to You of any material changes
to this Agreement. Within ten (10) business days of posting changes to this
Agreement (or ten (10) business days from the date of notice, if such is
provided), they will be binding on You. If You do not agree with the changes,
You should discontinue using the Services. If You continue using the Services
after such ten -business -day period, You will be deemed to have accepted the
changes to the terms of this Agreement. In order to participate in certain
Services, You may be notified that You are required to download software
and/or agree to additional terms and conditions. Unless expressly set forth in
such additional terms and conditions, those additional terms are hereby
incorporated into this Agreement. This Agreement has been prepared in the
English Language and such version shall be controlling in all respects and
any non-English version of this Agreement is solely for accommodation
purposes.
Exhibit ABinding Arbitration
This Exhibit A to the TOS describes the further provisions which apply to the Binding
Arbitration and Class Action Waiver.
A. Dis ute . A dispute is any controversy between You and Zoom concerning the
Services, any software related to the Services, the price of the Services, Your account,
Zoom's advertising, marketing, or communications, Your purchase transaction or billing, or
any term of this Agreement, under any legal theory including contract, warranty, tort,
statute, or regulation, except disputes relating to the enforcement or validity of Your or
Zoom's intellectual property rights. As part of the best efforts process to resolve disputes,
and prior to initiating arbitration proceedings, each party agrees to provide notice of the
dispute to the other party, including a description of the dispute, what efforts have been
made to resolve it, and what the disputing party is requesting as resolution,
to legal@zoom.us.
B. Small Claims Court Available. You may initiate an action in your local Small Claims
Court if You meets the court's requirements. However, if such a claim is transferred,
removed or appealed to a different court, Zoom reserves the right to require
arbitration.
C. Arbitration Procedure. Disputes not resolved pursuant to Section A or B shall be
resolved through arbitration. The American Arbitration Association ("AAA") will
Agreement No. 6383
conduct any arbitration under its Commercial Arbitration Rules. For more
information, see www.adr.org. Arbitration hearings will take place in the federal
judicial district of Your primary business location. A single arbitrator will be
appointed. The arbitrator must: (a) follow all applicable substantive Law; (b) follow
applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a
written decision including the reasons for the award. The arbitrator may award
damages, declaratory or injunctive relief, and costs (including reasonable attorneys'
fees). Any arbitration award may be enforced (such as through a judgment) in any
court with jurisdiction. Under AAA Rules, the arbitrator rules on his or her own
jurisdiction, including the arbitrability of any claim; however, a court has
exclusive authority to enforce the prohibition on arbitration on a class -wide
basis or in a representative capacity.
D. Arbitration Fees. If You are unable to afford the arbitration costs, Zoom will
advance those costs to You, subject to the arbitrator's determination if costs should
be reimbursed to Zoom if Zoom prevails. For disputes involving more than $75,000,
the AAA rules will govern payment of filing fees and the AAA's and arbitrator's fees
and expenses.
E. Qn-flictwith AAA R111gs. This Agreement governs if there is a conflict with the
AAA's Commercial Arbitration Rules.
F. ,equir�ement to File Within Q,ne Year. Notwithstanding any other statute of
limitations, a claim or dispute under this Agreement must be filed in Small Claims
Court or noticed for arbitration within one year of when it could first be filed, or
such claim will be permanently barred.
G. 5everabilily. If the class action waiver is found to be illegal or unenforceable as to
all or some parts of a dispute, then those parts will not be arbitrated but will be
resolved in court, with the balance resolved through arbitration. If any provision of
this Exhibit A is found to be illegal or unenforceable, then that provision will be
severed; however, the remaining provisions shall still apply and shall be interpreted
to as nearly as possible achieve the original intent of this Exhibit, inclusive of the
severed provision.
Agreement No. 6383
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written_
CITY OF EL SEGUNDO,
a general law city
Charles Mallory, rector
Information Technology Ser ces Department
ATTEST,
4
Tracy saver,
City Clerk
APPROVED AS TO FORM:
Mark D. Hensley,
City Attorney
'
/I- -, -
Joa uin Vazquez,
De,ty City Attorney