Terms of Services
Last Updated: December 2, 2024
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF ZENITHFLOW SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following meanings:
1.1 "Agreement" means these Terms and Conditions and any Order Form that references these Terms and Conditions, including any addenda and supplements thereto.
1.2 "Customer Content" means all information, data, text, messages, software, images, files, documents, or other materials that Customer and its Customer Users create, upload, submit, post, transmit, store, or process through the ZenithFlow Services, excluding Usage Data.
1.3 "Customer User" means an individual who is authorized by Customer to use the ZenithFlow Services, for whom Customer has purchased a subscription (or in the case of any Services provided by ZenithFlow without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, ZenithFlow at Customer's request) has supplied a user identification and password. Customer Users may include, for example, Customer's employees, consultants, contractors and agents.
1.4 "Documentation" means ZenithFlow's technical documentation and user guides for the ZenithFlow Services made available either through the Services or ZenithFlow's website, as updated from time to time.
1.5 "Order Form" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and ZenithFlow or any of ZenithFlow's Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.6 "ZenithFlow Services" means the online, web-based applications, platforms, and services provided by ZenithFlow, including but not limited to OmniCore, StoryForge, and any associated offline components, as described in the Documentation and Order Form. "ZenithFlow Services" exclude Third Party Applications.
1.7 "Usage Data" means data collected by ZenithFlow relating to the provision, use, and performance of various aspects of the ZenithFlow Services and related systems and technologies, including information concerning Customer's and Customer Users' access to and use of the ZenithFlow Services, data derived from Customer Content for aggregation and analytics purposes in an anonymized form, and data pertaining to the performance and scaling of the ZenithFlow Services.
1.8 "Subscription Term" means the period of time specified in the applicable Order Form during which Customer has agreed to subscribe to the ZenithFlow Services.
1.9 "Third Party Applications" means online, web-based applications and offline software products that are provided by third parties, interoperate with the ZenithFlow Services, and are identified as third-party applications.
2. LICENSE GRANT AND RESTRICTIONS
2.1 License Grant. Subject to Customer's compliance with the terms and conditions of this Agreement, ZenithFlow hereby grants to Customer, during the Subscription Term, a non-exclusive, non-transferable, worldwide right to:
a) Access and use the ZenithFlow Services in accordance with this Agreement and the applicable Order Form, solely for Customer's internal business operations;
b) Install, execute, and use any downloadable components of the ZenithFlow Services provided to Customer by ZenithFlow as part of Customer's subscription, solely in accordance with the Documentation and solely for Customer's internal business operations;
c) Allow Customer Users to access and use the ZenithFlow Services in accordance with the terms of this Agreement; and
d) Make a reasonable number of copies of the Documentation solely for Customer's internal use in connection with Customer's use of the ZenithFlow Services.
2.2 License Restrictions. Customer shall not, and shall ensure that Customer Users do not:
a) Make the ZenithFlow Services available to, or use the ZenithFlow Services for the benefit of, anyone other than Customer or Customer Users;
b) Sell, resell, license, sublicense, distribute, rent or lease any ZenithFlow Services, or include any ZenithFlow Services in a service bureau or outsourcing offering;
c) Use the ZenithFlow Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights;
d) Use the ZenithFlow Services to store or transmit Malicious Code;
e) Interfere with or disrupt the integrity or performance of the ZenithFlow Services or third-party data contained therein;
f) Attempt to gain unauthorized access to the ZenithFlow Services or their related systems or networks;
g) Copy, frame or mirror any part or content of the ZenithFlow Services, other than copying or framing on Customer's own intranets or otherwise for Customer's own internal business purposes;
h) Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the ZenithFlow Services or any software, documentation, or data relating to the ZenithFlow Services, except to the extent such prohibition is limited by applicable law;
i) Modify, translate, or create derivative works based on the ZenithFlow Services or any accompanying Documentation;
j) Access the ZenithFlow Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes;
k) Remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of ZenithFlow or its licensors on any copies of the Documentation you make; or
l) Use the ZenithFlow Services in any manner that exceeds the scope of use permitted in this Agreement or the applicable Order Form.
3. SERVICE SPECIFIC TERMS
3.1 OmniCore Platform.
a) License Scope. Customer's subscription to the OmniCore Platform includes access to ZenithFlow's artificial intelligence and machine learning capabilities as specified in the Order Form. The number of authorized users, API calls, and computing resources shall be limited to the quantities specified in the Order Form.
b) Model Training and Development. i) Any custom AI models developed using the OmniCore Platform shall be subject to a separate Custom Model Agreement. ii) Training data provided by Customer remains Customer's property subject to the license grants in Section 4. iii) Models trained using Customer data may only be used in accordance with the specifications in the Order Form. iv) ZenithFlow retains all rights to the underlying OmniCore technology and improvements thereof.
c) Usage Limitations. i) Customer shall not exceed the authorized number of API calls specified in the Order Form. ii) Excess usage will be charged at the rates specified in the Order Form. iii) ZenithFlow reserves the right to throttle API access to maintain service stability.
3.2 StoryForge Services.
a) Content Generation. i) Customer may use StoryForge to generate content within the fair use limits specified in the Order Form. ii) Generated content is provided "as is" and Customer is solely responsible for reviewing, editing, and approving any generated content before use. iii) Customer retains ownership of all prompts and Customer-specific training data provided to StoryForge.
b) Content Guidelines. i) Customer shall not use StoryForge to generate content that is illegal, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or otherwise objectionable. ii) ZenithFlow reserves the right to suspend access if Customer violates these guidelines.
c) Storage and Retention. i) Generated content will be stored for the period specified in the Order Form. ii) Customer is responsible for backing up and maintaining copies of all important content. iii) ZenithFlow may delete content after the specified retention period.
4. DATA RIGHTS AND PRIVACY
4.1 Customer Data Ownership and License.
a) Customer retains all right, title, and interest in and to all Customer Content, including all intellectual property rights therein.
b) Customer hereby grants to ZenithFlow a worldwide, non-exclusive, royalty-free license during the Subscription Term to host, copy, transmit, display, and process Customer Content as necessary to provide the ZenithFlow Services in accordance with this Agreement.
c) Customer represents and warrants that: i) Customer has all rights necessary to grant the licenses in this Section 4.1 ii) Customer Content and its use in the ZenithFlow Services will not violate any third party rights or any applicable law or regulation iii) Customer has obtained all necessary consents and provided all necessary notices for the processing of Customer Content
4.2 Usage Data Rights.
a) ZenithFlow owns all right, title, and interest in and to Usage Data.
b) ZenithFlow may use Usage Data for any purpose, including but not limited to: i) Operating, improving, and maintaining the ZenithFlow Services ii) Developing new products and services iii) Creating and distributing reports and other materials regarding use of the Services iv) For any other purpose, provided that Usage Data is aggregated and anonymized
4.3 Data Security.
a) Security Measures. ZenithFlow will maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Content, as described in the Security Addendum. Those safeguards will include measures designed to prevent unauthorized access, use, modification, deletion and disclosure of Customer Content by ZenithFlow personnel.
b) Data Processing Agreement. To the extent that Customer Content includes personal data protected by data protection laws, the parties agree that Customer is the data controller and ZenithFlow is the data processor of such personal data. The parties shall comply with the Data Processing Agreement attached hereto as Exhibit A.
c) Security Responsibilities of Customer. Customer is responsible for: i) Maintaining the security of all passwords and access credentials ii) Using appropriate security settings and controls available within the Services iii) Promptly notifying ZenithFlow of any unauthorized access or security breach iv) Ensuring Customer Users comply with security requirements
4.4 Data Retention and Deletion.
a) During the Subscription Term, Customer may export Customer Content using ZenithFlow's standard export tools.
b) Within 30 days after termination or expiration of this Agreement, Customer may request the return of Customer Content, and ZenithFlow will make such Customer Content available for export.
c) After such 30-day period, ZenithFlow shall have no obligation to maintain or provide any Customer Content and may delete or destroy all copies of Customer Content in its systems, unless legally prohibited.
5. CONFIDENTIALITY
5.1 Definition of 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 includes:
a) The terms and conditions of this Agreement and all Order Forms
b) Customer Content
c) ZenithFlow Services, including all source code, algorithms, and technical information
d) Business and marketing plans, technology and technical information, product plans and designs
e) Business processes and methods
f) Customer, financial, and personnel data
g) Any other information that would reasonably be considered non-public or proprietary
5.2 Protection of Confidential Information.
The Receiving Party agrees:
a) To 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)
b) Not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement
c) To limit access to Confidential Information to those of its employees, contractors, advisors and agents who: i) Need such access for purposes consistent with this Agreement ii) Have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein
5.3 Exceptions.
Confidential Information shall 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
d) Was independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information
5.4 Compelled Disclosure.
The Receiving Party may disclose Confidential Information to the extent required by law or legal process, provided that:
a) The Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted)
b) The Receiving Party provides reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure
c) The Receiving Party discloses only that portion of Confidential Information that it is legally compelled to disclose
6. FEES AND PAYMENT
6.1 Fees.
a) Customer shall pay all fees specified in the Order Form. Except as otherwise specified herein or in an Order Form: i) Fees are based on Services purchased and actual usage ii) Payment obligations are non-cancelable iii) Fees paid are non-refundable iv) Quantities purchased cannot be decreased during the relevant Subscription Term
b) Usage-Based Fees. i) Usage-based fees will be calculated based on actual usage in the preceding month ii) ZenithFlow will provide detailed usage reports upon request iii) Customer is responsible for monitoring and managing its usage
6.2 Invoicing and Payment.
a) Customer will provide ZenithFlow with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to ZenithFlow.
b) If Customer provides credit card information to ZenithFlow, Customer authorizes ZenithFlow to charge such credit card for all Services listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s).
c) If the Order Form specifies that payment will be by a method other than a credit card: i) ZenithFlow will invoice Customer in advance and otherwise in accordance with the Order Form ii) Invoices are due net 30 days from the invoice date iii) Customer is responsible for maintaining complete and accurate billing and contact information
6.3 Overdue Payments.
a) If any invoiced amount is not received by ZenithFlow by the due date: i) Such 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 ii) ZenithFlow may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2
b) If any amount owing under this Agreement is more than 30 days overdue: i) ZenithFlow may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full ii) ZenithFlow will give at least 10 days' prior notice that Customer's account is overdue before suspending Services
6.4 Taxes.
a) Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes").
b) Customer is responsible for paying all Taxes associated with its purchases hereunder: i) If ZenithFlow has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, ZenithFlow will invoice Customer and Customer will pay that amount ii) ZenithFlow is solely responsible for taxes assessable against it based on its income, property, and employees
7. TERM AND TERMINATION
7.1 Term of Agreement.
a) This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
b) The Subscription Term shall be as specified in the applicable Order Form: i) Subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Subscription Term ii) The per-unit pricing during any automatic renewal term will increase by up to 7% above the applicable pricing in the prior term, unless ZenithFlow provides Customer notice of different pricing at least 90 days prior to the renewal
7.2 Termination.
a) Termination for Cause. Either party may terminate this Agreement: i) Upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period ii) Immediately upon written notice 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
b) Effect of Termination: i) Upon termination of this Agreement for cause by Customer, ZenithFlow will refund Customer any prepaid fees covering the remainder of the term of all Order Forms ii) Upon termination of this Agreement for cause by ZenithFlow, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms iii) In no event will termination relieve Customer of its obligation to pay any fees payable for the period prior to the effective date of termination
7.3 Customer Data Portability and Deletion.
a) Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, ZenithFlow will make Customer Content available to Customer for export or download.
b) After such 30-day period, ZenithFlow will have no obligation to maintain or provide any Customer Content, and will thereafter delete or destroy all copies of Customer Content in its systems or otherwise in its possession or control, unless legally prohibited.
8. WARRANTIES AND DISCLAIMERS
8.1 ZenithFlow Warranties.
ZenithFlow warrants that:
a) The Services will perform materially in accordance with the applicable Documentation: i) Customer's exclusive remedy for ZenithFlow's breach of this warranty shall be as provided in Section 7.2 (Termination for Cause) ii) This warranty shall not apply to the extent of any non-conformance caused by use of the Services contrary to ZenithFlow's instructions or modification or alteration of the Services by any party other than ZenithFlow
b) ZenithFlow will not materially decrease the overall security of the Services during a subscription term
c) The Services will not introduce Malicious Code into Customer's systems: i) "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses ii) This warranty shall not apply to any Malicious Code originating from Customer Content or Third-Party Applications
8.2 Disclaimers.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ZENITHFLOW MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED "AS IS," AND "AS AVAILABLE" BASIS, EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
8.3 Third Party Services and Content.
a) ZenithFlow makes no warranty regarding any Third Party Applications or services: i) Customer's use of any Third Party Applications is governed by separate terms between Customer and the third-party provider ii) ZenithFlow does not warrant or support Third Party Applications or services iii) Customer assumes all risk arising from its use of Third Party Applications or services
b) Content generated by AI services: i) ZenithFlow makes no representations about the accuracy, reliability, or completeness of any AI-generated content ii) Customer is solely responsible for reviewing, verifying, and approving any AI-generated content before use iii) ZenithFlow disclaims all liability for Customer's use of AI-generated content
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability.
a) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
b) THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES' PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT" SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S OR ITS AFFILIATES' REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
9.3 Exceptions to Limitations.
The limitations in Section 9.1 and 9.2 shall not apply to:
a) Either party's breach of its confidentiality obligations under Section 5 b) Customer's breach of usage restrictions in Section 2.2 c) ZenithFlow's indemnification obligations d) Either party's gross negligence, willful misconduct, or fraud
10. GENERAL PROVISIONS
10.1 Export Compliance.
The Services, Content, other technology ZenithFlow makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service in a U.S. embargoed country or in violation of any U.S. export law or regulation.
10.2 Anti-Corruption.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
10.3 Entire Agreement and Order of Precedence.
This Agreement is the entire agreement between Customer and ZenithFlow regarding Customer's use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
10.4 Assignment.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety without the other party's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.5 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.
11. SERVICE LEVEL AGREEMENT (SLA)
11.1 Service Availability.
a) ZenithFlow will provide System Availability (as defined below) of at least 99.9% during each calendar month of the Subscription Term ("Service Level").
b) "System Availability" means the percentage of total time during which Customer is able to access and use the core functions of the Services, excluding: i) Planned maintenance windows ii) Emergency maintenance iii) Force majeure events iv) Issues resulting from Customer's systems or Third-Party Applications
11.2 Service Credits.
a) In the event ZenithFlow fails to meet the Service Level in a given month: i) Customer will be eligible to receive Service Credits ii) Service Credits will be calculated as a percentage of the monthly subscription charges iii) Service Credits may not be exchanged for, or converted to, monetary amounts
b) Service Credit Schedule:
- System Availability 99.0% - 99.9%: 5% credit
- System Availability 98.0% - 98.9%: 10% credit
- System Availability below 98.0%: 15% credit
11.3 Support Response Times.
a) ZenithFlow will respond to support requests based on the following severity levels:
- Severity 1 (Critical): 1 hour response time
- Severity 2 (High): 4 hour response time
- Severity 3 (Medium): 8 hour response time
- Severity 4 (Low): 24 hour response time
12. PROFESSIONAL SERVICES
12.1 Professional Services Terms.
a) ZenithFlow shall provide the Professional Services specified in the applicable Statement of Work (SOW): i) Each SOW shall include a description of the services, deliverables, and fees ii) Changes to any SOW require written agreement by both parties
b) Customer Responsibilities: i) Provide timely access to appropriate Customer personnel ii) Provide timely decisions and approvals iii) Provide accurate and complete information iv) Provide necessary access to Customer systems and facilities
12.2 Intellectual Property Rights.
a) Customer shall own all rights to any Custom Deliverables specifically created for Customer as specified in an SOW: i) ZenithFlow hereby assigns all rights in Custom Deliverables to Customer ii) ZenithFlow retains ownership of any pre-existing materials incorporated into Custom Deliverables
b) ZenithFlow Property: i) ZenithFlow retains all rights to its pre-existing intellectual property ii) ZenithFlow retains all rights to any general knowledge, skills, tools, and processes developed during the Professional Services
12.3 Warranty for Professional Services.
a) ZenithFlow warrants that Professional Services will be performed in a professional and workmanlike manner: i) Customer must report any deficiencies within 30 days of performance ii) ZenithFlow's entire liability for breach of this warranty shall be re-performance of the deficient Professional Services