ZipCodeAPI Subscription Agreement

THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) GOVERNS YOUR (IN WHICH “YOUR” AND “YOU” REFER TO YOU, YOUR COMPANY OR OTHER LEGAL ENTITY) ACCESS TO AND USE OF A SOFTWARE-AS-A-SERVICE SOLUTION (THE “SERVICE”) OF FASTZIP, LLC, DBA ZIPCODEAPI (“ZIPCODE API”, “WE”, “OUR” OR “US”). THE PARTICULAR SERVICE WHICH WE WILL MAKE AVAILABLE TO YOU HEREUNDER WILL BE THAT WHICH IS SPECIFIED IN AN ONLINE BILLING PAGE OR OTHER ONLINE ORDERING DOCUMENT WHICH IS SUBMITTED OR SELECTED BY YOU AS PART OF AN ONLINE SIGN-UP PROCESS ON OUR WEBSITE (IN EACH CASE, AN “ORDER”). BY USING THE SERVICE OR CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. EACH ORDER IS SUBJECT TO, AND GOVERNED BY, THIS AGREEMENT AND DEEMED TO BE A PART HEREOF. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS (IN WHICH CASE “YOU” REFERS TO SUCH COMPANY OR ENTITY).

1. Access To and Use of the Service
   1. Rights of Use. During the Term and subject to the terms and restrictions set forth in this Agreement, we grant you a non-exclusive, non-transferable, time-bounded, limited right (also referred to as a “subscription”) to access and use the Service, on a remote-access basis via the Internet, solely for the purposes authorized hereunder. Due to the evolving nature of technology and the inherent nature of the SaaS delivery model, the Service to which you are provided remote access hereunder shall be the version of such Service (as we may update from time to time) which is then generally hosted by us (or our third party hosting provider) for the then-active subscribers of such Service.
   2. Use by Authorized Employees and Authorized Users. You may only grant access to the Service to your employees and third party contractors: (i) who have a need to know and are authorized by you to use the Service on your behalf; (ii) who use the Service solely in support of your internal business operations (and not in support of the business operations, or otherwise for the benefit of, any individual, affiliate or other third party); and (iii) who are bound in a legally enforceable manner to comply with the confidentiality, limited use, and other applicable provisions of this Agreement which are protective of our rights and interests (“Authorized Users”). Where you are entering into this Agreement as an individual (i.e., not on behalf of a company or other entity), you are the sole Authorized User. You shall be responsible and liable to ensure that each Authorized User complies with the terms of this Agreement and the Order. Additional metrics-based limitations (such as requests over a particular time frame) regarding use of the Service (the “Usage Metric Limitation”) may apply to you as specified in an Order, and you shall comply with all such Usage Metric Limitation.
   3. Additional Restrictions; Reservation of Rights. You, including your Authorized Users, may use the Service solely for the purposes for which it was designed to be used. Unless otherwise expressly permitted in this Agreement, you will not, and shall ensure that your Authorized Users do not: (I) permit any third party individual or entity to access, use or copy all or any portion of the Service; (II) modify, reverse engineer, decompile, disassemble, copy, distribute, create derivative works based on, or otherwise exploit all or any portion of the Service; (III) sell, sublicense, rent, lease, or otherwise transfer rights to all or any portion of the Service; (IV) use the Service to operate in an outsourcing or service bureau arrangement or in any manner which supports the business or operations of a third party; (V) use the Service for any purpose, or in any manner, other than that for which it was designed to be used; or (VI) use the Service in any manner which: (a) poses a security risk; (b) violates any applicable law or regulation; (c) violates any acceptable use policy or similar policy which is posted on the website where the Service is accessed; (d) could disable, overburden, damage, or impair the performance or operation of the Service or the associated hosted environment; (e) introduces offensive, pornographic, infringing or other inappropriate content; or (f) poses a liability or intellectual property risk to us.
   4. Intellectual Property Rights. Except for the limited rights of use expressly granted herein, we (or, to the extent applicable, a third party licensor) solely and exclusively retains all right, title and interest in and to: (i) the Service, and in and to the associated documentation, materials, know-how, technology, content, methods and processes; (ii) all work product, deliverables and other intellectual property developed or provided by us in connection with the provision of the Service or performance of our obligations hereunder; and (iii) all modifications, enhancements, and derivative works thereto and all intellectual property rights therein. In the event that you or any of your users submit any ideas, suggestions, proposed enhancements, or other feedback relating to the Service (collectively, “Feedback”), we shall automatically own such Feedback without compensation to you and you hereby assigns all rights in such Feedback to us. Any rights not expressly granted to you under this Agreement are reserved by us. All restrictions and limitations in this Agreement regarding the use of the Service, or ownership thereof, shall also apply equally to the underlying software.
   5. Your Data. “Your Data” is all data or information provided by you to us or uploaded by you in the course of using the Service. You shall own Your Data.
   6. Security and Privacy. We shall maintain commercially reasonable administrative, physical and technical measures designed to safeguard and protect Your Data from unauthorized access, disclosure or use. Each party (you and us) shall comply with any and all laws regarding data security and data privacy which are applicable to the respective party in connection with the provision or use of the Service. You shall ensure that you and (as applicable) your Authorized Users do not distribute, or permit unauthorized access to or use of, any passwords, IDs, login keys or other account information related to the Service. Further, you shall indemnify, defend and hold us harmless from any claims, losses and/or liabilities which arise out of your breach of these security requirements and you shall notify us promptly upon becoming aware of any such breach.
      
      Our privacy policy (found at www.zipcodeapi.com/Privacy) provides additional information about how we treat Your Data. You agree that you have reviewed and agree to our privacy policy.
2. Term and Termination
   1. Initial Term and Renewals. Your right to use the Service shall extend for an initial period which is specified in the Order (the “Initial Term”). Unless otherwise stated in the Order, the Initial Term shall be for one (1) year from your acceptance of this Agreement. Thereafter, unless otherwise agreed upon by the parties in the Order, the Order will renew for successive one (1) year periods (each a “Renewal Term”) unless either party provides written notice of its intention not to renew the Order at least sixty (60) days prior to the expiration of the then-current term (i.e., the Initial Term or Renewal Term, as applicable), in which event this Agreement will terminate at the end of the then current term. The Initial Term, along with any Renewal Term constitutes the “Term” of an Order. If this Agreement is terminated prior to the natural expiration of its Term as authorized hereunder, then the Term shall be deemed reduced accordingly.
   2. Termination for Breach; Suspension. Either party may terminate this Agreement (including the Order) upon written notice if the other party breaches any material provision of this Agreement or the Order and fails, within thirty (30) days after receipt of written notice of such breach, to cure the breach. Failure to make payment when due shall constitute a material breach hereof. Without limiting the above, we may suspend your rights of use, or any Authorized User’s rights of use, in the Service: (i) if you are delinquent in your payment obligations for more than five (5) business days after we notify you in writing of the delinquency; (ii) immediately if you, or any Authorized User, materially misuses the Service in violation of this Agreement or your (or any Authorized User’s) use of the Service is in violation of applicable law or presents an imminent security, intellectual property or liability risk.
   3. Effect of Termination; Survival. Upon termination or expiration of this Agreement, all rights and obligations will automatically terminate. You shall make payment of fees due for all periods up through the effective date of termination and shall not have a right of refund of any fees paid prior thereto. In addition, you will (at our election) return or destroy all of our Confidential Information and proprietary materials then in your possession and immediately cease all access to, and use of, the Service (the Service will be disabled by us at this time). The terms of this Agreement which relate to confidentiality, intellectual property and data ownership, data protection, indemnity, limitations and disclaimers of liability and payment obligations, along with terms which expressly or by their nature should reasonably survive termination, shall survive expiration or termination hereof.
3. Financial Terms.
   
   The subscription fees due to us for your Initial Term and each Renewal Term will be calculated based on our then-current pricing set forth on our pricing page on our website on the commencement of the applicable term, unless otherwise agreed to by the parties in the applicable Order or otherwise in a writing which references these Terms. You will be required to provide your contact information and select a method of payment (for example, by credit card) to process such recurring payments and any applicable taxes. Once the advance payment is processed by us, the Service will be enabled for your access and use in accordance with this Agreement. If we agree in writing to invoice you for the subscription fees, all fees shall be invoiced in advance and shall be due and payable within thirty (30) days of the submission of the invoice. Invoiced amounts not paid by their due date shall be subject to a one percent (1%) per month interest fee, or the maximum amount permitted by applicable law, whichever is less. Prices do not include taxes, and You shall promptly pay, all applicable sales, use and other transactional taxes in connection with the Service, any other services or support provided, or any payments made under these Terms. All fees are committed amounts which are non-cancelable and non-refundable.
   
   If you exceed your then-applicable Usage Metric Limitation then you may upgrade to a new pricing plan. Upgrade options are described on our website and, to the extent set forth therein, the term of your subscription may be adjusted.
4. WARRANTIES, DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
   1. Each party warrants that it has the necessary and full right, power, authority and capability to enter into this agreement and to perform its obligations hereunder; that it owns or controls the rights granted or licensed to the other party herein; that the execution and performance of its obligations under this Agreement will not violate any known rights of any third party, any contractual commitments or any applicable federal, state and local law or regulation; and that to its knowledge the marks, logos and intellectual property licensed to the other party herein do not violate the proprietary rights of a third party.
   2. EXCEPT FOR THE WARRANTIES IN SECTION 4(a) ABOVE, NEITHER PARTY MAKES ANY WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, AND WE EXPLICITLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, WE EXPRESSLY DO NOT WARRANT THAT THE SERVICE, IN WHOLE OR IN PART, WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL MEET YOUR EXPECTATIONS.
   3. IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST DATA OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE SERVICE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM ASSERTED BY YOU HEREUNDER. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION AND SHALL APPLY EVEN IF A PARTY SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
5. Indemnities.
   1. Indemnity by Us. We will defend, indemnify and hold you harmless from and against any damages, losses, and costs that you incur as a direct result of a claim brought by a third party which alleges that the Service (in the form which we provide it to you) infringes a third party’s United States intellectual property right. As a condition of this indemnity, you must promptly notify us of any such claim; grant us sole control of the defense and settlement of any such claim; and reasonably cooperate with us to facilitate its ability to settle or defend the claim. In the event of a covered infringement claim, we shall use commercially reasonable efforts to obtain for you the right to continue using the Service, or, alternatively, to replace or modify the Service so that it is not infringing and is materially similar. If these alternatives are not commercially reasonable, we or you may, unless otherwise mutually agreed in writing by the parties, terminate this Agreement (including the Order) and, if you prepaid for any unused subscription periods for the applicable Service, refund that prepayment for the unused remainder of the then-current subscription term. We shall have no indemnity obligations to you if the infringement claim is caused by your misuse of the Service or other breach of this Agreement, or your use of the Service in combination with unauthorized products or services. THESE ARE OUR EXCLUSIVE OBLIGATIONS WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
   2. Indemnities From You. You shall defend, indemnify, and hold us harmless from and against any damages, losses, costs and expenses arising from or in connection with: (i) any claim that Your Data or other materials or content provided or made available by you infringes any rights of any third party or gives rise to defamation, invasion of privacy or other claim based on the nature or substance thereof; or (ii) any use of the Service by you (including any Authorized User) in a manner contrary to or in violation of the terms and conditions (including usage restrictions) of this Agreement or an Order, or contrary to applicable law.
6. Miscellaneous.
   1. Confidentiality. “Confidential Information” is non-public information of a party which is provided to the other party hereunder and which is either designated as confidential or of a type which should be recognized by a commercially reasonable party as confidential. Our Confidential Information includes the Service (including its underlying software) and its related documentation and materials, and all modifications to our derivatives thereof, as well as the terms and conditions of this Agreement. The party receiving Confidential Information may use it only for the purposes for which it was provided and may not disclose it to any third party unless such third party is providing services or functions in support of a party’s exercise of its rights or performance of its obligations hereunder and is bound in writing by commercially reasonable confidentiality and limited use restrictions which are appropriately protective of the disclosing party (additional obligations and conditions apply to you under Section 2(b) above with respect to your Authorized Users). The obligations to maintain Confidential Information as confidential shall remain in place for so long as the applicable information is maintained as confidential. The limitations on disclosure or use of Confidential information shall not apply to information which (i) is rightfully obtained by the recipient without breach of any confidentiality obligation; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient develops independently without using Confidential Information of the other party; or (iv) is disclosed in response to a valid court or governmental order, provided that, in such case, the recipient shall, to the extent reasonably practicable, give the other party prior written notice to afford the other party an opportunity to contest the disclosure.
      
      You shall maintain, and shall ensure that its Authorized Users maintain, the confidentiality of all account information that we provide to you to enable access and use of the Service. You shall be fully responsible for any unauthorized disclosure or use of such account information.
   2. Use of Your Data. You grant us, our employees and contractors (including our third party hosting provider, as applicable) a worldwide license to use, host, reproduce, perform, display, backup, store, process, transmit and share Your Data in order to support or facilitate the provision of the Service and the performance of our obligations hereunder, as well as for purposes which are otherwise authorized hereunder. You are responsible for obtaining all necessary rights and consents for us to use, process and store Your Data for the purposes of providing the Service and meeting our obligations under this Agreement and each Order.
      
      Notwithstanding anything to the contrary in this Agreement or any Order, we may collect and analyze information and content collected and derived from your and your Authorized Users’ use of the Service to determine usage volumes and trends, optimize support, improve and promote the Service, facilitate research and development, create analyses, and for other business purposes (collectively, “Analytic Data”); provided that such Analytic Data shall be de-identified and aggregated such that it does not contain any personally identifiable information or any information which identifies you or any Authorized User. Subject to the above conditions, the Analytic Data is owned by us.
   3. Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors and nothing contained in this Agreement will be construed to create an association, trust, partnership, agency or joint venture between the parties. This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
   4. Subcontractors. We may subcontract or delegate our performance obligations under this Agreement, but we shall remain responsible to you for the performance of such obligations by any such subcontractor.
   5. Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations under this Agreement during any period in which performance is delayed by circumstances not within such party’s reasonable control, such as a natural disaster, act of war or terrorism, government action, labor disruption, internet outages or interruptions, failure of third party equipment or networks, power outages or interruptions, hacking incidents and delays caused thereby, and other failures or delays caused by factors outside of the hosting environment from which the Service is made available.
   6. Laws. Each party shall comply with all laws and regulations which are applicable to its exercise of rights and performance of obligations hereunder and/or are applicable to its conduct in connection with this Agreement, including any applicable export laws and regulations.
   7. Entire Agreement; Severability; Waiver. This Agreement, including the Order, is the entire agreement between you and us with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and us regarding that subject matter. No amendment to or modification of this Agreement will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is found to be void or unenforceable, the provision will be stricken or modified and the remainder of this Agreement will remain in full force and will not be terminated. A waiver of any default is not a waiver of any subsequent default. All waivers must be in writing to be effective. In the event of a conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement shall control unless the Order expressly modifies one or more specified provisions of this Agreement.
   8. Governing Law and Jurisdiction. The laws of the State of New Jersey shall govern the interpretation and enforcement of this Agreement and any dispute arising out of or related hereto, without regard to its conflict of laws principles. The parties irrevocably submit to the exclusive jurisdiction of the courts in New Jersey with respect to any dispute arising out of or relating to this Agreement.
   9. Notices. Unless otherwise expressly provided under this Agreement, all notices must be in writing and shall be sent by first class U.S. mail, a nationally known express or overnight courier (such as FedEx, UPS or the U.S. Postal Service) or email. Email notices to us shall be sent to info@zipcodeapi.com. Notices to us via a physical address shall be addressed to our CFO and sent to 300 Mill Street, Suite 200, Moorestown, NJ 08057. Notices to you may be sent to the physical address (if any) which you provide during the ordering process or by email to an individual who provided his/her email address to us as (at sign-up or otherwise) as a user of the Service for you. Notices shall be deemed given upon receipt thereof. However, receipt may be evidenced by the mail carrier’s or courier’s confirmation of delivery at a particular time. Notices delivered by email shall be deemed received the next business day after it was sent unless it was returned as undelivered to the sender. Any notice of change of address shall be given in the manner set forth above.
   10. Audit. Upon reasonable notice, we (or our designated third party auditor) shall have the right to audit, and to request information from you regarding, your use of the Service in order to review and ensure past and ongoing compliance with this Agreement and each Order. You shall cooperate with such requests by providing requested information and facilitating remote and onsite audits in a prompt manner.
   11. Contract for Services. The parties agree that the provisions of the Uniform Commercial Code (UCC) and the Uniform Computer Information Transaction Act (UCITA) shall not apply hereto. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply hereto.