These Terms govern your purchase and use of Zonos Professional Services.
1. Services
1.1 Performance of Services. Zonos shall provide professional services (“Professional Services” or “Services”) to you as described in a signed Statement of Work (“SOW”) between you and Zonos, which incorporates these Terms by reference.
1.2 Change Orders. Changes to an SOW will require a written Change Order signed by the parties prior to implementation of the changes. Changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
1.3 Personnel and Subcontractors. Zonos may, in its reasonable discretion, use subcontractors inside or outside the United States to perform any of its obligations under this Agreement. Zonos will be responsible for the performance of Services by its personnel (including employees and contractors) and their compliance with Zonos’ obligations under this Agreement, except as otherwise specified in this Agreement. If you are dissatisfied with the personnel assigned by Zonos to provide the Services, the parties will in good faith determine a resolution.
2. Your Duties and Responsibilities
2.1 Data and Information. You will give Zonos access to all technical data, computer facilities, networks, programs, files, documentation, test data, sample output, or other information and resources that are, in Zonos’ reasonable opinion, required for the performance of the Services.
You will be responsible for and assume the risk of any problems, delays, losses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all such data, materials, and information it supplies to Zonos. Zonos will not be liable for any delay or deficiency in performing the Services caused by your failure to provide the necessary cooperation. Any delays in the performance of Services caused by you may result in additional charges.
3. Fees, Invoicing, and Taxes
3.1 Fees. You will pay for the Services at the rates and times specified in the applicable SOW.
3.2 Reimbursable Costs. You shall reimburse Zonos for reasonable travel expenses incurred in connection with providing the Services unless otherwise stated in the SOW.
3.3 Invoicing and Payment. Zonos shall provide you with an invoice for fees and reimbursable costs. Invoiced amounts will be due and payable net 30 days from the invoice date, unless otherwise stated in the applicable SOW. Fees are nonrefundable. You are responsible for providing Zonos with complete and accurate billing and contact information.
3.4 Overdue Charges. Subject to Section 3.5 below, if any invoiced amount is not paid by the due date, then without limiting Zonos’ rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. You will pay to Zonos all reasonable costs and expenses for the collection of overdue amounts, including legal fees. In addition, Zonos may condition future purchases on payment terms shorter than those specified in this Section 3.
3.5 Suspension of Professional Services. If any amount owing for Services under this Agreement is 30 days or more overdue, Zonos may, without limiting its rights and remedies, suspend the performance of Services until the amounts are paid in full. Zonos will not suspend Services as long as you are disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute. You must provide written notice to Zonos of your good faith dispute within 15 days of invoice receipt.
3.6. Taxes. Zonos’ fees do not include any taxes, levies, or duties, including, for example, value-added, sales, use, or withholding taxes. You are responsible for paying all taxes associated with the Services. Zonos remains solely responsible for taxes assessable against Zonos based on its income, property, and employees.
4. Termination
4.1 Termination of an SOW for Convenience. You may terminate an individual SOW, in whole or part, for convenience with 30 days prior written notice. In that event, Zonos is not responsible for the resulting condition of the project. Upon any termination of an SOW for time and materials projects, you will pay any unpaid fees and expenses incurred on or before the termination date and will not be entitled to a refund of any unused prepaid fees. Upon any termination of an SOW for fixed fee projects, you will be required to pay all amounts due and there will be no refund.
4.2 Termination of an SOW for Cause. A party may terminate an individual SOW for cause: (i) upon 30 days written notice to the other party of a material breach, including untimely payment if the breach remains uncured at the expiration of the 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
5. Non-solicitation
5.1 Non-Solicitation. During work on any SOW and for one (1) year after termination thereof, neither party shall directly or indirectly solicit or hire the other’s employees.
6. Proprietary Rights
6.1 Intellectual Property. As between the parties, each party retains all ownership rights in and to its own intellectual property and Confidential Information (as defined below in Section 7).
6.2 Professional Service Materials. Zonos will own all materials, software, tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, data, inventions, works of authorship, and other innovations of any kind that Zonos or its personnel may use, make, conceive, develop, or reduce to practice, alone or jointly with others, in the course of performing the Professional Services or as a result of the Professional Services (collectively the “Professional Services Materials”), including all intellectual property rights therein.
You acknowledge that Zonos, in its sole discretion, has the right to use the Professional Services Materials or any portion thereof in its own products or services or to license them to others. At Zonos’ request and expense, you will assist and cooperate with Zonos in all reasonable respects and execute documents and take further acts reasonably requested to enable Zonos to acquire, transfer, maintain, perfect, and enforce intellectual property rights and other legal protections for the Professional Services Materials. All rights not expressly granted under these Terms are reserved to Zonos.
6.3 License. Subject to these Terms and upon your payment of fees due under an applicable SOW, Zonos grants to you a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to the Professional Services Materials solely for your internal business purpose in association with use of Zonos products or services.
You grant to Zonos any rights in or to your intellectual property as may be required for Zonos to perform its obligations under these Terms.
7. Confidentiality
7.1 Confidential Information. Confidential Information means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes all SOWs (including pricing), business and marketing plans, financial information, strategies, data, technology and technical information, research and development, product plans and designs, and business processes disclosed by a party.
However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.
7.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those individuals who need access for purposes consistent with this Agreement and who have confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in this Agreement.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted), and reasonably assists the Disclosing Party, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8. Changes to the Terms
8.1 Changes. Zonos may revise and update these Terms from time to time at its sole discretion. All changes will be communicated on the Zonos website and in an email to registered account users of the platform. All changes are effective immediately upon being posted. Your continued use of Zonos’ products and services following the posting of revised Terms means that you accept and agree to the changes.
9. Warranties and Disclaimers
9.1 Warranty. Zonos warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, your exclusive remedy and Zonos’ entire liability will be the re-performance of the applicable Professional Services. If Zonos is unable to re-perform the Professional Services as warranted, you will be entitled to recover the Professional Services fees paid to Zonos for the deficient Professional Services. The customer must make any claim under the foregoing warranty to Zonos in writing within 30 days of performance of the Professional Services in order to receive warranty remedies. SECTION 11 DESCRIBES ZONOS’ SOLE LIABILITY AND YOUR SOLE REMEDY FOR A PROFESSIONAL SERVICES WARRANTY CLAIM.
9.2 Disclaimer. EXCEPT AS OTHERWISE EXPLICITLY PROVIDED IN SECTION 9.1, THE PROFESSIONAL SERVICES ARE PROVIDED "AS IS." THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE DO NOT WARRANT THAT THE OPERATION OF THE PROFESSIONAL SERVICE MATERIALS OR ANY OF THE PROFESSIONAL SERVICES PERFORMED PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED OR ERROR-FREE.
10. Indemnification
10.1 Indemnification. Each party will defend and indemnify the other party against any claim, demand, suit, or proceeding made or brought against the other party by an unaffiliated third party: (a) arising out of death, personal injury, or damage to tangible property to the extent caused by the indemnifying party or its personnel’s negligent acts or willful misconduct; or (b) alleging that any information, design, specification, instruction, software, data, or material furnished by the indemnifying party in connection with an SOW and these Terms (“Material”) infringes or misappropriates a third party’s intellectual property rights (the “IP Indemnity”). The indemnifying party will have no obligation under this Section to the extent any claim is based on the negligent acts or willful misconduct of the indemnified party.
10.2 Procedure. The party seeking indemnification will promptly notify the other party of the claim and cooperate in defending the claim. Failure to provide timely notice or reasonable assistance will relieve the indemnifying party of its obligations under Section 10 to the extent the indemnifying party has been materially prejudiced. The indemnifying party will have full control and authority over the defense, including appeals, negotiations, and any settlement, except that: (a) it may not make an admission of fault on behalf of the other party without written consent, (b) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (c) the other party may join in the defense with its own counsel at its own expense. The indemnifying party will (i) retain and pay attorneys and court costs as part of its defense obligation, (ii) reimburse the other party for reasonable out‐of‐pocket expenses that it incurs in providing assistance, and (iii) pay the amount of any resulting adverse final judgment (including any award of attorney’s fees and costs), penalties, sanctions or settlement. SECTION 10 STATES THE SOLE LIABILITIES AND EXCLUSIVE REMEDIES FOR CLAIMS DESCRIBED IN SECTION 10.
10.3 Exceptions. The indemnifying party will have no liability for an IP Indemnity claim to the extent that (a) it arises from specifications or other material provided by the other party, or (b) the claim is based on the indemnified party’s use of a superseded or altered version of Material if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered version of the Material that was provided to the indemnified party. In the event that some or all of the Material is held or is reasonably believed by the indemnifying party to infringe or misappropriate, the indemnifying party may in its discretion and at no cost to the indemnified party (i) modify or replace the Material so it is no longer claimed to infringe or misappropriate, or (ii) obtain a license for the indemnified party’s continued use of the Material in accordance with this Agreement.
11. Limitation of Liability
11.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE LOSS, WHETHER DIRECT OR INDIRECT, OF USE, PROFIT, REVENUE, BUSINESS, OPPORTUNITY, GOODWILL OR DATA, OR FOR BUSINESS INTERRUPTION OR COST OF COVER), HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, TORT, OR OTHER THEORY OF LIABILITY) EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE OR REASONABLY FORESEEABLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.2 LIMITATION. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO AN SOW EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER UNDER THE SOW FOR THE SOW OUT OF WHICH THE LIABILITY AROSE. THIS LIMITATION APPLIES TO ANY DAMAGE, HOWEVER CAUSED, AND ON ANY THEORY OR LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT, MISREPRESENTATION, NEGLIGENCE, OR OTHERWISE, AND REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR NOT.
11.3 Exceptions to Limitations. The limits of liability in Section 11.2 apply to the fullest extent permitted by law, except with regard to: (a) violation of the other party’s Intellectual Property Rights; (b) Customer’s failure to comply with its payment obligations; or (c) breach of a party’s obligations under Section 7 (Confidentiality) or Section 10 (Indemnification).
12. General
12.1 Entire Agreement. This Agreement, including all SOW, constitutes the entire agreement between you and Zonos regarding the provision of Professional Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter, including any prior versions of the Professional Service Agreement.
12.2 Assignment. Neither party may assign, transfer, or delegate any of its rights or obligations under this Agreement or any SOW, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, Zonos may assign this Agreement and any SOW in its entirety in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all assets.
12.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction or arbitrator to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Any waiver, amendment, or other modification of this Agreement must be in writing and signed by an authorized representative of both parties.
12.5 Notice. Except as otherwise specified in this Agreement, notice or approval must be in writing, signed by a party’s authorized representative.
12.6 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, internet failure, communication line failure and power failures, war, acts of terror, riot, acts of God, or governmental action.
12.7 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Nothing in this Agreement creates an exclusive relationship or in any way prevents Zonos from entering into similar arrangements with or providing similar services to other entities, including, without limitation, other similar customers.
12.8. Governing Law and Jurisdiction. This Agreement is to be governed by and interpreted in accordance with the laws of the State of Utah, U.S.A., without giving effect to its principles of conflict of laws. The prevailing party in any action to enforce the terms of this Agreement will be entitled to recover its attorneys’ fees from the other party.
12.9 Counterparts. This Agreement may be entered into in separate counterparts, each of which when so executed will be deemed an original and taken together will constitute one fully executed Agreement. The parties consent to use electronic signatures and the Agreement may not be invalidated on the basis that the documents and signatures were electronically provided.
Zonos Professional Services - Terms of Service
These Terms govern your purchase and use of Zonos Professional Services.
1. Services
1.1 Performance of Services. Zonos shall provide professional services (“Professional Services” or “Services”) to you as described in a signed Statement of Work (“SOW”) between you and Zonos, which incorporates these Terms by reference.
1.2 Change Orders. Changes to an SOW will require a written Change Order signed by the parties prior to implementation of the changes. Changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
1.3 Personnel and Subcontractors. Zonos may, in its reasonable discretion, use subcontractors inside or outside the United States to perform any of its obligations under this Agreement. Zonos will be responsible for the performance of Services by its personnel (including employees and contractors) and their compliance with Zonos’ obligations under this Agreement, except as otherwise specified in this Agreement. If you are dissatisfied with the personnel assigned by Zonos to provide the Services, the parties will in good faith determine a resolution.
2. Your Duties and Responsibilities
2.1 Data and Information. You will give Zonos access to all technical data, computer facilities, networks, programs, files, documentation, test data, sample output, or other information and resources that are, in Zonos’ reasonable opinion, required for the performance of the Services.
You will be responsible for and assume the risk of any problems, delays, losses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all such data, materials, and information it supplies to Zonos. Zonos will not be liable for any delay or deficiency in performing the Services caused by your failure to provide the necessary cooperation. Any delays in the performance of Services caused by you may result in additional charges.
3. Fees, Invoicing, and Taxes
3.1 Fees. You will pay for the Services at the rates and times specified in the applicable SOW.
3.2 Reimbursable Costs. You shall reimburse Zonos for reasonable travel expenses incurred in connection with providing the Services unless otherwise stated in the SOW.
3.3 Invoicing and Payment. Zonos shall provide you with an invoice for fees and reimbursable costs. Invoiced amounts will be due and payable net 30 days from the invoice date, unless otherwise stated in the applicable SOW. Fees are nonrefundable. You are responsible for providing Zonos with complete and accurate billing and contact information.
3.4 Overdue Charges. Subject to Section 3.5 below, if any invoiced amount is not paid by the due date, then without limiting Zonos’ rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. You will pay to Zonos all reasonable costs and expenses for the collection of overdue amounts, including legal fees. In addition, Zonos may condition future purchases on payment terms shorter than those specified in this Section 3.
3.5 Suspension of Professional Services. If any amount owing for Services under this Agreement is 30 days or more overdue, Zonos may, without limiting its rights and remedies, suspend the performance of Services until the amounts are paid in full. Zonos will not suspend Services as long as you are disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute. You must provide written notice to Zonos of your good faith dispute within 15 days of invoice receipt.
3.6. Taxes. Zonos’ fees do not include any taxes, levies, or duties, including, for example, value-added, sales, use, or withholding taxes. You are responsible for paying all taxes associated with the Services. Zonos remains solely responsible for taxes assessable against Zonos based on its income, property, and employees.
4. Termination
4.1 Termination of an SOW for Convenience. You may terminate an individual SOW, in whole or part, for convenience with 30 days prior written notice. In that event, Zonos is not responsible for the resulting condition of the project. Upon any termination of an SOW for time and materials projects, you will pay any unpaid fees and expenses incurred on or before the termination date and will not be entitled to a refund of any unused prepaid fees. Upon any termination of an SOW for fixed fee projects, you will be required to pay all amounts due and there will be no refund.
4.2 Termination of an SOW for Cause. A party may terminate an individual SOW for cause: (i) upon 30 days written notice to the other party of a material breach, including untimely payment if the breach remains uncured at the expiration of the 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
5. Non-solicitation
5.1 Non-Solicitation. During work on any SOW and for one (1) year after termination thereof, neither party shall directly or indirectly solicit or hire the other’s employees.
6. Proprietary Rights
6.1 Intellectual Property. As between the parties, each party retains all ownership rights in and to its own intellectual property and Confidential Information (as defined below in Section 7).
6.2 Professional Service Materials. Zonos will own all materials, software, tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, data, inventions, works of authorship, and other innovations of any kind that Zonos or its personnel may use, make, conceive, develop, or reduce to practice, alone or jointly with others, in the course of performing the Professional Services or as a result of the Professional Services (collectively the “Professional Services Materials”), including all intellectual property rights therein.
You acknowledge that Zonos, in its sole discretion, has the right to use the Professional Services Materials or any portion thereof in its own products or services or to license them to others. At Zonos’ request and expense, you will assist and cooperate with Zonos in all reasonable respects and execute documents and take further acts reasonably requested to enable Zonos to acquire, transfer, maintain, perfect, and enforce intellectual property rights and other legal protections for the Professional Services Materials. All rights not expressly granted under these Terms are reserved to Zonos.
6.3 License. Subject to these Terms and upon your payment of fees due under an applicable SOW, Zonos grants to you a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to the Professional Services Materials solely for your internal business purpose in association with use of Zonos products or services.
You grant to Zonos any rights in or to your intellectual property as may be required for Zonos to perform its obligations under these Terms.
7. Confidentiality
7.1 Confidential Information. Confidential Information means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes all SOWs (including pricing), business and marketing plans, financial information, strategies, data, technology and technical information, research and development, product plans and designs, and business processes disclosed by a party.
However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.
7.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those individuals who need access for purposes consistent with this Agreement and who have confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in this Agreement.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted), and reasonably assists the Disclosing Party, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8. Changes to the Terms
8.1 Changes. Zonos may revise and update these Terms from time to time at its sole discretion. All changes will be communicated on the Zonos website and in an email to registered account users of the platform. All changes are effective immediately upon being posted. Your continued use of Zonos’ products and services following the posting of revised Terms means that you accept and agree to the changes.
9. Warranties and Disclaimers
9.1 Warranty. Zonos warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, your exclusive remedy and Zonos’ entire liability will be the re-performance of the applicable Professional Services. If Zonos is unable to re-perform the Professional Services as warranted, you will be entitled to recover the Professional Services fees paid to Zonos for the deficient Professional Services. The customer must make any claim under the foregoing warranty to Zonos in writing within 30 days of performance of the Professional Services in order to receive warranty remedies. SECTION 11 DESCRIBES ZONOS’ SOLE LIABILITY AND YOUR SOLE REMEDY FOR A PROFESSIONAL SERVICES WARRANTY CLAIM.
9.2 Disclaimer. EXCEPT AS OTHERWISE EXPLICITLY PROVIDED IN SECTION 9.1, THE PROFESSIONAL SERVICES ARE PROVIDED "AS IS." THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE DO NOT WARRANT THAT THE OPERATION OF THE PROFESSIONAL SERVICE MATERIALS OR ANY OF THE PROFESSIONAL SERVICES PERFORMED PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED OR ERROR-FREE.
10. Indemnification
10.1 Indemnification. Each party will defend and indemnify the other party against any claim, demand, suit, or proceeding made or brought against the other party by an unaffiliated third party: (a) arising out of death, personal injury, or damage to tangible property to the extent caused by the indemnifying party or its personnel’s negligent acts or willful misconduct; or (b) alleging that any information, design, specification, instruction, software, data, or material furnished by the indemnifying party in connection with an SOW and these Terms (“Material”) infringes or misappropriates a third party’s intellectual property rights (the “IP Indemnity”). The indemnifying party will have no obligation under this Section to the extent any claim is based on the negligent acts or willful misconduct of the indemnified party.
10.2 Procedure. The party seeking indemnification will promptly notify the other party of the claim and cooperate in defending the claim. Failure to provide timely notice or reasonable assistance will relieve the indemnifying party of its obligations under Section 10 to the extent the indemnifying party has been materially prejudiced. The indemnifying party will have full control and authority over the defense, including appeals, negotiations, and any settlement, except that: (a) it may not make an admission of fault on behalf of the other party without written consent, (b) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (c) the other party may join in the defense with its own counsel at its own expense. The indemnifying party will (i) retain and pay attorneys and court costs as part of its defense obligation, (ii) reimburse the other party for reasonable out‐of‐pocket expenses that it incurs in providing assistance, and (iii) pay the amount of any resulting adverse final judgment (including any award of attorney’s fees and costs), penalties, sanctions or settlement. SECTION 10 STATES THE SOLE LIABILITIES AND EXCLUSIVE REMEDIES FOR CLAIMS DESCRIBED IN SECTION 10.
10.3 Exceptions. The indemnifying party will have no liability for an IP Indemnity claim to the extent that (a) it arises from specifications or other material provided by the other party, or (b) the claim is based on the indemnified party’s use of a superseded or altered version of Material if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered version of the Material that was provided to the indemnified party. In the event that some or all of the Material is held or is reasonably believed by the indemnifying party to infringe or misappropriate, the indemnifying party may in its discretion and at no cost to the indemnified party (i) modify or replace the Material so it is no longer claimed to infringe or misappropriate, or (ii) obtain a license for the indemnified party’s continued use of the Material in accordance with this Agreement.
11. Limitation of Liability
11.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE LOSS, WHETHER DIRECT OR INDIRECT, OF USE, PROFIT, REVENUE, BUSINESS, OPPORTUNITY, GOODWILL OR DATA, OR FOR BUSINESS INTERRUPTION OR COST OF COVER), HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, TORT, OR OTHER THEORY OF LIABILITY) EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE OR REASONABLY FORESEEABLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.2 LIMITATION. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO AN SOW EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER UNDER THE SOW FOR THE SOW OUT OF WHICH THE LIABILITY AROSE. THIS LIMITATION APPLIES TO ANY DAMAGE, HOWEVER CAUSED, AND ON ANY THEORY OR LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT, MISREPRESENTATION, NEGLIGENCE, OR OTHERWISE, AND REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR NOT.
11.3 Exceptions to Limitations. The limits of liability in Section 11.2 apply to the fullest extent permitted by law, except with regard to: (a) violation of the other party’s Intellectual Property Rights; (b) Customer’s failure to comply with its payment obligations; or (c) breach of a party’s obligations under Section 7 (Confidentiality) or Section 10 (Indemnification).
12. General
12.1 Entire Agreement. This Agreement, including all SOW, constitutes the entire agreement between you and Zonos regarding the provision of Professional Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter, including any prior versions of the Professional Service Agreement.
12.2 Assignment. Neither party may assign, transfer, or delegate any of its rights or obligations under this Agreement or any SOW, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, Zonos may assign this Agreement and any SOW in its entirety in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all assets.
12.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction or arbitrator to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Any waiver, amendment, or other modification of this Agreement must be in writing and signed by an authorized representative of both parties.
12.5 Notice. Except as otherwise specified in this Agreement, notice or approval must be in writing, signed by a party’s authorized representative.
12.6 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, internet failure, communication line failure and power failures, war, acts of terror, riot, acts of God, or governmental action.
12.7 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Nothing in this Agreement creates an exclusive relationship or in any way prevents Zonos from entering into similar arrangements with or providing similar services to other entities, including, without limitation, other similar customers.
12.8. Governing Law and Jurisdiction. This Agreement is to be governed by and interpreted in accordance with the laws of the State of Utah, U.S.A., without giving effect to its principles of conflict of laws. The prevailing party in any action to enforce the terms of this Agreement will be entitled to recover its attorneys’ fees from the other party.
12.9 Counterparts. This Agreement may be entered into in separate counterparts, each of which when so executed will be deemed an original and taken together will constitute one fully executed Agreement. The parties consent to use electronic signatures and the Agreement may not be invalidated on the basis that the documents and signatures were electronically provided.