These Terms and Conditions of Use (the “Agreement”) are a legal agreement between Zift Solutions(“Company’) a North Carolina Corporation and you, a person or entity authorized by a specific customer of the Company (hereinafter referred to as “you’ or “your’) and governs your use of the services (the “Services’) provided through the Zift123 portal.
IN ORDER TO USE THE SERVICES YOU MUST ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. AFTER READING THE TERMS, IF YOU AGREE TO THEM, PLEASE INDICATE YOUR DECISION BY CLICKING ON “I AGREE” ON THE SERVICE REGISTRATION PAGE. IF YOU DO NOT AGREE, YOU WILL NOT BE ALLOWED TO USE THE SERVICES.Company may revise and update this Agreement at any time, in which case it will notify you and all other users of the changes to the Agreement. Your continued use of the Services will mean you accept those changes and agree to this Agreement as revised. You may not amend or change this Agreement unless Company agrees to such amendment or change in writing.
Your Use of the Services
You may use the Services, subject to the terms and conditions of this Agreement. You are solely responsible for your use of the Services. You specifically agree that you may not use the Services for anything other than a lawful and legitimate purpose. Examples of prohibited uses of the Services include, but are not limited to: (a) deceptive and unfair trade practices; (b) introduction of viruses, worms or other programming routines that are intended to disrupt or interfere with the intended operation of the Services; (c) promotion of any unlawful activity or purpose, including any activity that could give rise to criminal or civil liability; (d) any activity that infringes on the copyright, patent, trademark or other rights of any person or entity; and (e) any activity that infringes any applicable law governing the use and disclosure of information regarding an identified or identifiable individual that is Processed in connection with Services (“Personal Data”). In addition to the foregoing, you may not use the Services in any way that (i) does not comply with the terms of this Agreement, as amended by Company from time to time, or any other terms, rules, or guidelines provided by Company concerning your use of the Services, or (ii) might adversely affect Company’s public image, reputation or goodwill. You agree: (i) not to reverse engineer, disassemble or decompile the Services or any part thereof; (ii) to take all reasonable steps to insure that the Services, and the trade secrets, confidential and proprietary information contained therein, are not disclosed to any person other than your employees, licensees or agents who have a need for access in order to use them; (iii) not to remove the copyright, trade secret or other proprietary protection legends or notices which appear on the Services; and (iv) that you shall promptly notify Company of and shall otherwise cooperate with Company in preventing any unauthorized use or copying of the Services by your employees, agents, customers or others. Company reserves the right to provide maintenance and upgrades to its systems, which may make the Services temporarily unavailable. Company will attempt to schedule downtime during hours of low usage such as weekends, holidays and off-peak business hours, but under certain conditions Company may have to work on the system at other times.
Suspension or Termination of the Services and the Agreement
Notwithstanding anything else herein to the contrary, without limiting Company’s other remedies in law or equity, Company may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your ability to access the Services and/or terminate this Agreement, without notice or liability therefor, for any reason whatsoever (in Company’s sole determination), including but not limited to if (a) you breach this Agreement or any other agreement between Company and you; (b) Company is unable to verify or authenticate any information you provide to it (which it has no duty to do but may pursue in its sole and absolute discretion); or (c) Company believes, in its sole and absolute discretion, that your actions may cause, result in or carry a risk of legal liability for you, Company or any third party. Upon termination of this Agreement, any provision of this Agreement that by its terms imposes continuing obligations on you shall survive the termination of this Agreement.
You represent that any information provided by you in connection with your use of the Services is accurate, complete and current, and you agree to update that information promptly if there is any change. You represent that any Personal Data or other information you provide that pertains to another individual or party was obtained and is supplied with their prior express consent, in compliance with applicable laws governing the actual and proposed use of Personal Data, and consistent with any applicable agreements or contractual obligations that govern the operations performed on Personal Data such as collection, recording, storage, alteration, use, disclosure, erasure, or destruction (“Processing”). If this Agreement is being accepted by any individual for you, then you represent that such individual has the authority to execute this Agreement on your behalf.
As part of the Services, you may create or provide information, messages, data and other materials in electronic format that will be stored, uploaded, posted, e-mailed or otherwise transmitted using the Services (collectively “User Materials’). You represent that you have obtained all necessary third party rights, including, without limitation, copyrights, for any User Materials that belong to third parties. It is your responsibility to determine if it is necessary for you to obtain, and for obtaining, any licenses required to use third party information or content that is part of the User Materials. You agree not to use the Services for, and the User Material will not contain, any infringing, illegal, sexually explicit, hateful, vulgar, threatening, abusive, harassing, defamatory, or racially, ethnically, or otherwise objectionable material, including, without limitation, any materials that could give rise to any liability to Company or which might adversely affect Company’s public image, reputation or goodwill. YOU WILL BE RESPONSIBLE FOR MAKING BACK-UP AND ARCHIVAL COPIES OF ALL USER MATERIALS. IN NO EVENT WILL COMPANY BE RESPONSIBLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS, CORRUPTION OR ALTERATION OF USER MATERIALS, OR FOR ANY LOSS ARISING OUT OF ANY BREACH OF ANY SECURITY, INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, DIRECT, INDIRECT OR OTHER DAMAGES OF ANY KIND.
Use of Data; Data Protection
Company and you shall both take appropriate technical and organizational measures against unauthorized or unlawful Processing of Personal Data or its accidental loss, destruction, or damage. Company and you shall implement and maintain commercially reasonable technical and organizational security measures designed to protect Personal Data from Data Breaches, to help ensure the ongoing confidentiality, integrity, and availability of the Personal Data and Processing systems, including, as applicable and appropriate, the measures referred to in Article 32 of the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”). Notwithstanding the above, you agree that you are responsible for your secure use of the Services, including keeping any access credentials, such as a user ID and or password, secure, secret, and confidential. You are responsible for changing your credentials if you believe that they have been compromised or stolen or might otherwise be misused.
Company shall notify you without undue delay after becoming aware of any (“Data Breach”). Company shall make reasonable efforts to identify the cause of the Data Breach and shall undertake such steps as it deems necessary and reasonable in order to remediate the cause of such Data Breach. Company shall provide information related to the Data Breach to you as reasonably necessary for you to maintain compliance with applicable laws, including GDPR. The obligations herein shall not apply to incidents that are caused by you or any Company customer with which you are associated, including your or such customer’s employees, partners, subcontractors, or agents.
Additional Terms Applicable to Personal Data Subject to GDPR
The following terms apply only to Processing of Personal Data that is subject to GDPR:
Processing Scope and Duration. Company shall Process Personal Data only for the purposes described in the Agreement, in accordance with your documented lawful instructions, or as required by applicable law. Company will undertake Processing of Personal Data on your behalf to deliver the Services as set forth herein, and shall continue until you and all Company customers with which you are associated direct that Processing should cease, or all agreements applicable to such Services are terminated, whichever occurs first. Personal Data that may be processed include contact information, such as email address, phone number, social media identifiers, and postal or physical address; device information, such as device identifiers; analytics information, such as cookie IDs, internet usage, and engagement with communications; professional information, such as job function, title, and employee identification number; and user enrollment in the Services. Other Personal Data may be submitted as reasonably necessary for you or a Company customer with which you are associated to receive or use Services, but in no case shall such Personal Data include sensitive or special categories of Personal Data. Data subjects include prospective, current business contacts, customers, and contractors, or current and former authorized users, of you or a Company customer with which you are associated.
Duty of Confidentiality. Company shall ensure that any person who is authorized by it to Process Personal Data (including its staff, agents, and subcontractors) shall be under an appropriate obligation of confidentiality.
Deletion or Return of Personal Data. Upon termination or expiration of the Agreement, Company shall (at your election) delete or return, if feasible, to you all Personal Data remaining in Company’s possession or control, save that this requirement shall not apply: (i) to the extent Company is required by applicable law to retain some or all of the Personal Data; (ii) if Company is Processing the Personal Data on behalf of another Data Controller such as a Company customer with which you are associated pursuant to an independent data protection agreement; (iii) if Company is reasonably required to retain some or all of the Personal Data for limited operational and compliance purposes; or (iv) to Personal Data Company has archived on back-up systems. In all such cases, Company shall maintain the Personal Data securely and limit Processing to the purposes that prevent deletion or return of the Personal Data.
Subprocessing. This Agreement constitutes your written authorization for Company to engage other Data Processors (“Sub-processors”) to Process Personal Data on your behalf, including the Sub-processors currently engaged by Company. Company shall: (i) take commercially reasonable measures to ensure that Sub-processors have the requisite capabilities to Process Personal Data in accordance with this Agreement; (ii) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal Data to the standard required by GDPR; (iii) remain responsible for its compliance with the obligations of this Agreement and for any acts or omissions of the Sub-processor that cause Company to breach any of its obligations under this Agreement; and (iv) notify you in the event that it intends to engage different or additional Sub-processors that will Process Personal Data pursuant to this Agreement, which may be done by email or posting on a website identified by Company to you. You must raise any objection to posted Sub-processors within five (5) calendar days of the posted update and your objection shall only be effective if submitted to Company in writing, specifically describing your reasonable belief that Company’s proposed use of the Sub-processor(s) will materially, adversely affect your compliance with GDPR. In any such case the parties will make reasonable efforts to reconcile the matter. In the event your concern cannot be resolved, Company may terminate this Agreement with no penalty and pay all fees and costs then owing and incurred by Company remain payable.
International Transfers. Company may Process Personal Data anywhere in the world where Company or its Sub-processors maintain data Processing operations. To the extent Company Processes any Personal Data protected by GDPR under this Agreement in a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for Personal Data, the parties acknowledge that Company shall be deemed to provide adequate protection (within the meaning of GDPR) due to its membership in the EU-US Privacy Shield and Swiss-US Privacy Shield and adherence to the terms of this Agreement.
Assistance. Company shall provide commercially reasonable cooperation to assist you in response to: (1) any requests from data protection authorities with authority relating to the Processing of Personal Data under this Agreement; (2) an individual’s request to access, correct, amend, delete, or block Processing of Personal Data; (3) your requests for information regarding Processing of Personal Data, such as information security reviews or data protection impact assessments. Company shall only be required to respond to commercially reasonable requests that are reasonably necessary for you to comply with GDPR, and only to the extent you do not have the ability to independently address these needs. Company shall not be compelled to respond if not legally permitted to do so. You shall be responsible for any and all costs arising from Company’s or its Sub-processors’ provision of assistance in accordance with this section. Company shall cooperate with on-site audits and inspections performed you only to the extent necessary to determine Company’s compliance with GDPR, at your sole expense and subject to reasonable fees and costs charged by Company, at a date and time and for a duration agreed upon by Company, and provided the audit or inspection does not and will not damage, injure, or disrupt Company’s premises, equipment, personnel, or business. Notwithstanding the foregoing, Company will not be required to disclose any proprietary or privileged information and, except with respect to requests by data protection authorities and data subjects, you shall not exercise your rights under this section more than once per year, including with respect to any support required to perform a data protection impact assessment.
Disclaimer of Warranty
THE SERVICES ARE PROVIDED “AS IS’, “AS AVAILABLE’, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND COMPANY HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY NEITHER WARRANTS THAT THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT CONTAINED IN OR PROVIDED THROUGH THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY. ANY USE OF THE SERVICES IS AT YOUR OWN RISK.
Limitation of Liability
COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST PROFITS OR DATA OR BUSINESS INTERRUPTION), WHETHER ARISING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, DATA OR E-MAILS, ERRORS, DEFECTS, VIRUSES OR OTHER MALICIOUS CODE, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY OF COMPANY TO YOU FOR ANY CLAIM WHATSOEVER, WHETHER ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR FOR ANY CLAIM MADE AGAINST COMPANY BY ANY OTHER PARTY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, EXCEED FIVE DOLLARS ($5.00).
You agree to defend, indemnify and hold harmless Company, its officers, directors, employees, contractors, customers, suppliers and licensors, from and against any and all costs, fees, loss, claim or liability (including without limitation all attorneys’ fees and expenses) which they may incur in connection with (a) your breach of this Agreement or any other rules or guidelines provided to you by Company, or (b) your use of the Services or processing of Personal Data. You agree that you are responsible for any communications, transactions or use of the Services that are made using your credentials, together with any fees, charges, liability or other obligation that may result from such use.
Legal Compliance; Authority; Binding Nature
You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Services or processing of Personal Data. You agree, represent and warrant that (i) you understand the terms and conditions of this Agreement and that it constitutes a valid, binding obligation, and (ii) you have full power, authority and legal capacity to enter into this Agreement. You may not assign your rights in this Agreement to any other party without the express written agreement of Company.
Choice of Law; Miscellaneous
This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to the choice of law provisions thereof. Any controversy or claim arising out of or relating to this Release, or the negotiation or breach thereof, shall be settled by arbitration in accordance with N.C. Gen. Stat. § 1-569.1 et seq. (the “Revised Uniform Arbitration Act’) and the then-current Rules of Commercial Arbitration of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be held in Raleigh, North Carolina and shall be conducted in the English language, and shall be conducted before a single arbitrator mutually agreeable to the parties, or if no agreement can be reached, then selected by the American Arbitration Association. The arbitrator shall award reimbursement of attorneys’ fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. Any decision by an arbitrator may be affirmed and reduced to judgment in any court of competent jurisdiction. In addition, the losing party shall reimburse the prevailing party for the costs and expenses incurred by it, including attorneys’, arbitrators’ and courts’ fees and expenses, in connection with any action or proceeding hereunder.
This Agreement and the rights granted hereunder may not be assigned or transferred by you, in whole or in part without Company’s prior written consent. Any successor in interest or assign must agree to the terms and conditions of this Agreement. Without limiting the foregoing, you may not provide any other person access to the Services. If any provision of this Agreement is held invalid, such invalidity shall not affect any other provisions of this Agreement. Headings are inserted for reference only and shall not be construed as a part of this Agreement. No failure or delay on the part of Company to exercise any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right preclude any other or further exercise thereof or of any other right. This Agreement represents the entire understanding and agreement between you and Company concerning your use of the Services, and supersedes any prior representations, understandings or agreements.