Terms of Service
Last Modified: December 1st, 2013
The following are the terms and conditions for use of the zapaty.com (together with its affiliates, “Zapaty”) online service (the “Service”) between Zapaty and you (either an individual or a legal entity that you represent as an authorized employee or agent). Please review this Terms of Service Agreement carefully. The Service may be used by individuals who are at least eighteen (18) years old or minors who have parental permission to open and maintain an account; provided, however, in no event is any individual under the age of thirteen (13) years old permitted to use the Service.
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY THIS TERMS OF SERVICE (THIS “AGREEMENT”).
The offering of the Service is conditioned on your acceptance without modification of this Agreement.
You also agree to Zapaty’s Acceptable Use Policy, the current version of which is posted at https://zapaty.com/zapaty-acceptable-use-policy/
“Account” refers to the billing account for the Service.
“Application Key” means the proprietary string of characters, also known as a key, which is generated by the Software to uniquely identify an application from your Account.
“Data” means the data in tables or other files stored in your Account which is collected through use of the zapaty.com website (the “Site”).
“Deploy Code” means, collectively, the proprietary Zapaty software that is installed on a web page for the purpose of displaying an application from your Account, together with any online documentation, and any fixes, updates and upgrades provided to you. The Deploy Code also refers to a URL, or the address of a web page, containing a link to the Service and an Application Key.
“Processing Software” means the proprietary Zapaty software that displays your application, retrieves and renders your application data, and processes submissions to your activated forms.
“Servers” means the servers controlled by Zapaty upon which the Processing Software and Data are stored.
“Service” has the meaning ascribed to such term in the first paragraph of this Agreement.
“Software” means the Deploy Code, the Processing Software and the Application Key.
“Submissions” refers to the number of submissions from forms which are linked to tables or other files in your Account.
“Website” means the collection of pages containing the Deploy Code.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
To register for the Service, you shall provide Zapaty with current, complete and accurate information as prompted by the registration form, including your e-mail address. You are solely responsible for any and all activities that occur under your Account. You agree to notify Zapaty immediately upon learning of any unauthorized use of your Account or any other breach of security. From time to time, Zapaty support staff may log into the Service under your Account in order to maintain or improve service, including without limitation assisting you with technical or billing issues. You hereby acknowledge and consent to such access.
Subject to the terms and conditions of this Agreement, Zapaty hereby grants you a limited, revocable, non-transferable, non-exclusive license to use the Software.
Subject to the terms and conditions of this Agreement, you may remotely access the Service at zapaty.com and other Servers provided by Zapaty. Your use of and access to the Software and the Service is conditioned upon the following:
You shall not (i) copy, modify, adapt, translate or otherwise create derivative works of the Software, or permit others to do so; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except to the extent expressly permitted by the law in effect in the jurisdiction in which you are located, or permit others to do so; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Deploy Code or the Service; (iv) remove any proprietary notices or labels on the Deploy Code or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You shall use the Software and Service solely for your own use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You shall comply with all applicable laws and regulations in your use of and access to the Software and Service.
This license will terminate immediately if you fail to comply with the terms of this Agreement. Upon such termination, you shall destroy all originals and copies of the Deploy Code in your possession and cease any further use of the Service without the express written consent of Zapaty.
The Service is offered to you to help you with the operation of your business. You agree not to use the products or services provided through or in connection with the Service to: (i) conduct any business that is unlawful, (ii) infringe or otherwise violate a third party’s rights, (iii) collect information about third parties, without their express consent; or (iv) interfere with or disrupt the Service or Servers.
Zapaty reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, from the Servers, at Zapaty’s sole and absolute discretion, without notice.
FEES AND SERVICES
The fees for the Service are as posted at https://zapaty.com/pricing/ unless otherwise stated on a valid written or electronic purchase order (which has been accepted by Zapaty in writing); provided, however, that any additional or conflicting terms contained in any purchase order, standardized form or correspondence, which are in addition to or conflict with this Agreement, shall be null and void unless such terms and conditions are contained in an amendment to this Agreement duly executed by both parties hereto. Zapaty reserves the right to suspend or terminate your access to the Service for your failure to remit payment in a timely manner. Zapaty may change its fees and payment policies for the Service from time to time. The changes to the policy are effective after Zapaty provides you with at least thirty (30) days’ notice of the changes by posting the changes at https://zapaty.com/pricing/ . Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with your Account.
Amounts not paid by you to Zapaty when due may bear interest at the lesser of (i) one and one-half percent (1.5%) per month, and (ii) the maximum rate permitted by applicable law. If you notify Zapaty in writing that you are terminating this Agreement, fees pre-paid by you to Zapaty for the Service will be refunded to you in the same manner as originally paid to Zapaty on a pro-rated basis (except to the extent such termination is due to your breach of this Agreement) within sixty (60) days after receipt of your notice of termination. Zapaty is only required to refund directly to you any amounts paid hereunder pursuant to the express terms and conditions of this Agreement, and only if and to the extent Zapaty can issue such refund in the same manner as such amounts were originally paid to Zapaty. It is your responsibility to notify Zapaty of any changes to your original method of payment, for example, if the credit card used to make such original payment has expired.
You understand and agree that your Service fee consists of a monthly fee. The monthly fee applies to all Accounts even if your Account is inactive. Monthly fees automatically recur every month unless you properly close your account with Zapaty. Monthly fees are charged at the beginning of your monthly cycle, beginning at the termination of the free trial period and continuing every month thereafter
TERM; AUTOMATIC RENEWAL
The term of Accounts is indefinite unless terminated at any time in Zapaty’s sole and absolute discretion. This Agreement, as may be amended from time to time, shall remain in full force and effect for so long as your Account is valid.
From time to time Zapaty may offer a free trial of the Service to prospective customers. Zapaty reserves the right to discontinue the offering of free trial Service without notice. Free trials are meant to let prospective customers experience the Service before committing to it. Use of a free trial Service for anything other than the above is prohibited. Furthermore, you agree that you are not allowed to (i) open more than one trial account, and/or (ii) upon termination of your free trial account open a new trial account.
One type of free trial offering requires payment information at the time of sign up. This type of free trial account automatically converts to a regular paying Account at the end of the trial period. If the trial account is not closed within the trial period, regular fees will apply immediately thereafter.
Another type of free trial account requires no payment information at sign up. Unless you convert your free trial account to a paying account within fourteen (14) days of opening your account, Zapaty reserves the right to discontinue your account at the end of such fourteen (14) day trial period and delete all of your Data and account information without notice.
Free trial account users additionally agree that you (i) will not use more capacity and resources than allocated to your account, (ii) will not hide or otherwise tamper with Zapaty branding on your confirmation pages, (iii) will maintain accurate and up to date contact and, to the extent collected by Zapaty, billing information, and (iv) agree to receive sales and marketing emails from Zapaty and its partners. Zapaty may, in its sole and absolute discretion, immediately terminate your service, upgrade your free account to a regular, paying Account, and/or charge appropriate fees if any of the requirements above are not met.
From time to time, Zapaty may offer access to beta software to interested parties. Beta software is software that is not officially released, and may contain problems or bugs, and is not warranted by Zapaty in any way. Any beta services are provided “as is” for evaluation and testing purposes only, and beta users are advised to not rely on the features or performance of such services for any reason. By registering for and using beta services, you acknowledge that you are accessing a pre-release evaluation of such services and that such services and/or any products and services offered in connection therewith may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other applications, and may cause errors, data loss or other problems. Zapaty shall not be liable for any damages, including but not limited to direct, indirect, incidental or consequential damages or for loss of data, profits, or revenue incurred by you or third parties.
As a beta user, you agree that you shall promptly report to Zapaty any failure of the applicable beta service to perform in accordance with applicable documentation, and will provide such other information relating to the beta service as Zapaty may reasonably request. At Zapaty’s request, you will provide a written evaluation of the beta service in a form reasonably requested by Zapaty. You grant Zapaty an unrestricted, royalty-free right to use all such feedback for purposes of marketing, public relations, correcting and/or enhancing the beta service and developing additional products and services.
Zapaty’s beta programs have a fixed duration. At the end of a beta program you may be offered the opportunity to convert your beta account to a regular Account. Beta accounts that are not converted to a regular Account are deleted at the end of the beta program and all Data is lost. You agree that if you do not convert your beta account to a regular Account, you will remove all Zapaty Software and Deploy Code from your websites immediately at the conclusion of the beta program.
When you initially create an account, you may be asked whether or not you wish to receive marketing and other non-critical Service-related communications from Zapaty and our partners from time to time. You may opt out of receiving such communications at that time or at any subsequent time by changing your preference under Account Information. Free Zapaty account users will not have the option of opting out unless they terminate their free account or upgrade to a paying Account. Please be aware that because the Service is a hosted online application, Zapaty occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you are or become a paying customer of the Service, you agree that Zapaty can disclose the fact that you are a paying customer and the edition of the Service that you are using.
ACCOUNT INFORMATION AND DATA
Zapaty does not own any Data. You, not Zapaty, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Data, and Zapaty shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data. Zapaty reserves the right to withhold, remove and/or discard Data without notice for any breach of this Agreement, including, without limitation, your non-payment. Upon termination of your Account, your right to access or use Data immediately ceases, and Zapaty shall have no obligation to maintain or forward any Data.
Zapaty shall not be liable for taxes and other governmental fees and assessments to be paid which are related to purchases made from you or from the Server. You agree that you shall be solely responsible for all taxes, fees, and assessments of any nature associated with products or services sold through the use of or with the aid of the Services.
SECURITY AND STORAGE OF INFORMATION
Zapaty has certain security measures in place to help prevent the loss, misuse or adulteration of Data stored on the Servers. These measures include Secure Socket Layer encryption and the use of a firewall. Any questions or concern about security can be addressed https://zapaty.com/contact/. Notwithstanding the foregoing, Zapaty shall have no obligation or responsibility to preserve, archive, store or otherwise protect the integrity of the Data against corruption, deletion or destruction. Data is not stored for an indefinite amount of time.
ENHANCING AND MODIFYING THE SERVICE
Zapaty reserves the right to enhance, upgrade, or modify the Service with or without notice to you. Zapaty shall not be liable to you or any third party should Zapaty exercise its right to enhance or modify the Service.
You shall indemnify, hold harmless and defend Zapaty, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Zapaty or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Zapaty or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of this Agreement, (ii) your negligence or misconduct in connection with the Service, or (iii) your violations of applicable law in connection with the Service.
THIRD PARTY TERMS
If you provide access to your forms, your Account or any portion thereof to any third party or use the Service to collect information from or on behalf of any third party (a “Third Party”), whether or not you are authorized to do so by Zapaty, these Third Party Terms shall apply to you.
You shall ensure that each Third Party abides by the terms of this Agreement. Any information of a Third Party that is considered confidential information of such Third Party shall be treated as confidential by you and shall not be disclosed to any other third party. Each Third Party shall be considered a customer of you, and not a customer of Zapaty; provided, however, that Zapaty reserves the right to enforce the terms of this Agreement against such Third Parties and you shall provide that Zapaty is a third party beneficiary with respect to your agreement with the Third Party.
Zapaty makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, you shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Zapaty, the Service or the Software, or use thereof. You shall indemnify, hold harmless and defend Zapaty, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Zapaty or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Zapaty, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) any representations and warranties made by you concerning any aspect of the Service or the Software to Third Parties; (ii) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Service or the Software; (iii) violations of your obligations of privacy to any Third Party; and (iv) any claims with respect to acts or omissions of Third Parties in connection with the Service or the Software that would otherwise be a breach of this Agreement by you.
DISCLAIMER OF WARRANTIES
Zapaty does not warrant or represent that the use of the Service will be correct, accurate, timely or otherwise reliable. You specifically agree that Zapaty shall not be responsible for unauthorized access to or alteration of the Data or data from the Website.
THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY ZAPATY, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE AND THE SOFTWARE INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. ZAPATY DOES NOT WARRANT THAT THE SERVICE AND/OR THE SOFTWARE WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT ERRORS WILL BE FIXED, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
ZAPATY SHALL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST REVENUE, PROFITS OR DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF ZAPATY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOREGOING PARAGRAPH.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
Zapaty’s cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the total fees paid by you to Zapaty for use of the Service.
PROPRIETARY RIGHTS NOTICE
Title, ownership rights, and intellectual property rights in and to the Software, Zapaty’s confidential information, and any other Zapaty information and materials, and the Service, shall remain with Zapaty. Zapaty reserves all rights not expressly granted to you in this Agreement.
You hereby grant Zapaty the right to use your trade name and/or your corporate logo in connection with Zapaty’s promotional materials and/or website to identify you as a customer of Zapaty.
You may have access to information that is confidential to Zapaty (“Confidential Information”). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Zapaty’s Confidential Information shall include, without limitation, the Service, Software, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, licensee names, prospective licensee names, the terms and pricing under this Agreement, and the results of any comparative or other benchmarking tests with respect to the Service or the Software, in each case regardless of whether such information is identified as confidential. Confidential Information includes all information received from third parties that you are obligated to treat as confidential and oral information that is identified by Zapaty as confidential. This obligation of confidentiality does not apply to any information that is or becomes a part of the public domain through no act or omission by you, was in your lawful possession prior to the disclosure without any restriction on disclosure, or is independently developed by you without use of or reference to such Confidential Information. If you are required to disclose such Confidential Information to any court or government authority, then you agree to provide Zapaty with sufficient written notice prior to your disclosure to enable Zapaty to seek a protective order or otherwise prevent such disclosure. Such obligations of confidentiality shall survive any termination of this Agreement indefinitely.
You agree, unless required by law, (i) not to make Confidential Information available in any form to any third party (including but not limited to entities or individuals that market, distribute or provide web database software or services) except to your employees or agents who are required to know such Confidential Information to allow you to exercise your rights under this Agreement, and (ii) not to use the Confidential Information for any purpose other than in the performance of this Agreement. You shall not disclose the results of any performance tests of the Software or Service to any third party without Zapaty’s prior written approval. You agree to take all necessary steps to ensure that Confidential Information is not disclosed or distributed by your employees or agents in breach of this Agreement. You acknowledge and agree that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this section of the Agreement and that such breach would cause irreparable harm to Zapaty, therefore Zapaty shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law, in equity and/or under this Agreement.
U.S. GOVERNMENT RIGHTS
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or any related documentation, shall be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
This Agreement and the license granted herein will terminate automatically if you fail to comply with any of the terms and conditions hereof. Upon termination, you must remove the Deploy Code and all other Zapaty materials and information from the Website. Zapaty reserves the right to terminate this Agreement and your use of the Service for any reason or no reason.
To terminate your use of the Service, you must visit https://zapaty.com/cancellation-request/ and fill out the form to request the termination of your Account. Upon receipt and verification, a Zapaty representative will delete your Account and all of your Data. You will be charged for the billing period in which you terminate your account according to the terms of this Agreement. If you do not formally request the termination of your Account, you will continue to be billed for the Service. If you have paid for a yearly membership, you may be eligible for a refund of the unused months. However, your monthly rate will be prorated at the normal monthly rate, and your refund will be calculated by multiplying the number of months your account has been active by the current normal monthly amount, and then that amount will be subtracted from the amount you paid for the annual membership. If there is a balance remaining, your refund will be processed within 14 days of your written cancellation request submitted at the following url: https://zapaty.com/cancellation-request/
MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
Zapaty reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service, or any policy governing the Service, at any time, by posting the new agreement to the Site. You are responsible for regularly reviewing the site. Your continued use of the Site or the Services shall constitute your acceptance of any such changes and your agreement to be legally bound thereby.
MISCELLANEOUS; APPLICABLE LAW AND VENUE
Zapaty shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between the parties concerning its subject matter, and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable, and all other provisions of this Agreement shall remain in full force and effect. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, and any such attempted assignment shall be void and of no effect without the advance written consent of Zapaty, such consent not to be unreasonably withheld, conditioned or delayed. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective heirs, successors, permitted assigns, and legal representatives. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws principles. You agree, in the event any claim or suit is brought in connection with Zapaty’s provision of the Services to you, to submit to the jurisdiction of the Commonwealth of Pennsylvania, and agree to the courts of Philadelphia County, Pennsylvania as the appropriate forum.
FOR MORE INFORMATION
If you have any questions or comments about this Agreement, the Service, or your experience with the Service, please contact Zapaty online at https://zapaty.com/contact/