Updated as of March 1, 2024
This Master Subscription Agreement (the “Agreement”) is entered into by and between Zocha Group Tech, LLC, a California limited liability company (“Company”), and the party that subscribes for the Services (as defined below) (“Client”). Client consents to all the terms and conditions of this Agreement by signing an order form (an “Order Form”) or otherwise receiving the Services. If Client previously agreed to Company’s online Master Subscription Agreement of an earlier updated date, then this Agreement supersedes those terms and is controlling in all respects. Company and Client may each be referred to herein as a “Party”, and collectively, as the “Parties”.
1. SERVICES. Subject to the terms and conditions herein, Company will provide those certain services set forth in an Order Form to be provided by Company to Client, for Client’s sole use and benefit (the “Services”), and any deliverables provided in connection with the provision of Services, expressly excluding any Company Property or Third Party Property (each as defined below) (collectively, the “Deliverables”) to Client for the duration of the Term (as defined below). Client shall not permit any other third party to use the Services or Deliverables. Client shall use the Services and Deliverables in compliance with all applicable laws at all times.
2. PAYMENTS.
a. Fees. Client shall pay to Company the applicable fees set forth in each Order Form (the “Fees”). All Fees are noncancelable and nonrefundable, except as expressly set forth herein.
b. Expenses. Unless otherwise set forth in an Order Form signed by the Parties, Client shall pay to Company all of Company’s reasonable out-of-pocket expenses, including, but not limited to, travel, lodging, food and other reasonable expenses which are incurred by Company in the connection with performing the Services (collectively, the “Service Expenses”), provided, such Service Expenses have been pre-approved (which pre-approval shall not be unreasonably withheld, conditioned, or delayed) in writing (email to suffice) by Client before they are incurred. Client shall reimburse Company for such Service Expenses within fifteen (15) days of Client’s receipt of Company’s invoice. If Client fails to pre-approve such Service Expenses, Company is under no obligations to perform the actions that would result in Company incurring such Service Expenses.
c. Payment Terms. Upon acceptance of this Agreement, Client will automatically be charged via credit card, ACH or Stripe payment in United Stated Dollars for the first month of Fees for the Services as set forth in the Order Form. Thereafter, Client agrees to be automatically charged for the monthly Fees for the Services in advance for the duration of the Initial Term and all applicable Renewal Terms. If Client’s payment method fails for any reason, Company may (i) assess a finance charge of 1.5% per month for any late payments and/or (ii) cease providing the Services. On demand, Client shall reimburse Company for all expenses incurred by Company in the collection of any unpaid invoices, including, without limitation, all attorneys’ fees (collectively, the “Collection Expenses”, and together with the Service Expenses, the “Expenses”). In the event of early termination as permitted in this Agreement or an Order Form, the Services shall terminate upon the end of the month in which the notice period ends and no prepaid Fees shall be refunded to Client.
d. Taxes. All amounts payable by Client under this Agreement are exclusive of all applicable sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges (collectively, “Taxes”). Client is responsible for payment of all Taxes, except taxes based on Company’s net income. If Client is required to pay any such taxes, Client shall pay such taxes with no reduction or offset in the amounts payable to Company hereunder. If an applicable tax authority requires Company to pay any taxes that should have been payable by Client, Company will advise Client in writing, and Client will promptly reimburse Company for the amounts paid.
3. TERM; TERMINATION.
a. Term. The term of this Agreement shall commence upon the Effective Date (as defined in the Order Form) of the first Order Form Client signs and shall continue in full force and effect so long as there is at least one (1) active Order Form (the “Term”). The Term of each Order Form shall be set forth in such Order Form; provided, however, if an Order Form does not set forth a Term, the Term for such Order Form shall be on a month-to-month basis cancellable by either Party upon thirty (30) days prior written notice to the other Party.
b. Termination. Notwithstanding any provisions of this Agreement to the contrary, in addition to any termination rights set forth in an Order Form, either Party may terminate this Agreement or any Order Form at any time following thirty (30) days’ prior written notice to the other Party if: (a) a petition under any bankruptcy law is filed by or against the other Party, (b) the other Party executes an assignment for the benefit of creditors, (c) a receiver is appointed for the other Party’s assets, (d) the other Party becomes insolvent or takes advantage of any insolvency or any similar statute, and/or (e) the other Party breaches a material term of this Agreement, provided that in the event of a breach, the breaching Party shall have the opportunity to cure such breach within ten (10) days’ notice by the non-breaching Party. Notwithstanding any provision of this Agreement to the contrary, Company may immediately terminate this Agreement for Client’s failure to make timely payments of all Fees, Expenses, and/or other amounts due and payable to Company under this Agreement.
c. Effect of Termination. Notwithstanding any provision of this Agreement to the contrary, Client expressly agrees that upon termination of this Agreement, any unpaid Fees, Expenses and other sums due to Company pursuant to this Agreement shall be paid by Client in accordance with the terms of this Agreement. Furthermore, any non-cancelable materials, services, contracts, reservations, arrangements, commitments, etc., made with Client’s approval, and still existing at the expiration or effective termination of this Agreement, shall be carried to completion and paid for by Client, in accordance with the provisions of this Agreement, and Client shall indemnify Company for the same.
4. INDEMNIFICATION/LIMITATION OF LIABILITY.
a. Indemnification by Client. Client shall indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, subcontractors, and each of their respective employees, officers, directors, shareholders, licensees, managers, members, representatives, agents, successors and assigns (each a “Company Indemnitee”) from and against all claims, proceedings, causes of action, liabilities, losses, damages or expenses, including, without limitation, reasonable attorneys’ fees and costs, that any Company Indemnitees may incur as the result of any claim, suit or proceeding brought or threatened arising out of: (i) the operation of Client’s business; (ii) Client’s gross negligence or willful misconduct; (iii) Client’s breach of any provision, covenant, warranty, or representation set forth in this Agreement; (iv) information supplied to Company by or through Client, (v) elements of the Services or Deliverables provided by, or created in accordance with specific instructions from Client or its agents, or (vi) the Services or Deliverables to the extent modified by Client or its agents.
b. Indemnification by Company. Company shall indemnify, defend and hold harmless Client and Client’s parent, subsidiary and affiliated companies, and each of their respective employees, officers, directors, shareholders, licensees and agents (each a “Client Indemnitee”) against all claims, proceedings, causes of action, liabilities, losses, damages or expenses, including reasonable attorneys’ fees and costs, that any Client Indemnitee may incur as the result of any third party claim, suit or proceeding brought or threatened against Client for: (i) Company’s gross negligence or willful misconduct in the performance of the Services and/or (ii) Company’s breach of its representation or warranties under this Agreement; provided, however, that such indemnification will not apply to (i) elements of the Services or Deliverables provided by or created in accordance with specific instructions from Client or its agents; or (ii) Services or Deliverables to the extent modified by Client or its agents.
c. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOST PROFITS, GOODWILL, SAVINGS, OR USE, OF ANY KIND OR NATURE ARISING OUT OF, OR RELATING TO THE PERFORMANCE, BREACH, OR TERMINATION OF THIS AGREEMENT, WHETHER SUCH DAMAGE OR LOSS IS FORESEEABLE OR NOT, WHETHER THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR NOT, AND WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE. EXCEPT WITH RESPECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL THE LIABILITY OF COMPANY ARISING OUT OF ANY SERVICES PROVIDED HEREUNDER EXCEED THE FEES PAID FOR THE PARTICULAR SERVICES OUT OF WHICH A CLAIM FOR LIABILITY AROSE.
5. NON-SOLICITATION. Company and Client agree that neither shall directly or indirectly solicit for employment or independent consulting/contractor services any employees or contractors of the other Party during the term of this Agreement and for twelve (12) months thereafter. It shall not constitute a breach of the foregoing sentence, however, if either Client or Company (i) makes solicitations for employment or services by general advertisements in periodicals of broad distribution or (ii) hires any person that responds to a solicitation of the type described in the previous clause (i).
6. CONFIDENTIALITY. In the course of the Parties’ business under this Agreement, a Party (the “Receiving Party”) may receive, learn, or otherwise have access to the other Party’s (the “Disclosing Party”) Confidential Information (as defined below). Receiving Party shall keep such Confidential Information confidential and not disclose or use the Confidential Information for its own benefit or for the benefit of any third party (except as may be required for the performance of Services or required by law). “Confidential Information” is defined as any non-public information, documents or materials (i) which are identified by the Disclosing Party, at the time that they are made available, to be proprietary, or confidential or (ii) that the Receiving Party ought reasonable to have known was confidential regardless of any such identification as such (including, without limitation, Company’s rates, fees, and the other terms of this Agreement). The Parties agree that Confidential Information shall not include, nor shall the confidentiality obligations in the preceding sentence extend to any information, documents, or materials that: (a) become publicly available without breach of this Agreement, (b) are received from a third party without restriction or breach of any agreement, or (c) are independently developed without reference to information received hereunder from the Disclosing Party, or (d) the Receiving Party is required by law, regulation or court order to disclose Confidential Information provided that the Receiving Party will promptly notify the Disclosing Party in writing prior to making any such disclosure in order to facilitate the Disclosing Party’s seeking a protective order or other appropriate remedy from the appropriate body at its own expense. All such obligations under this Section 6 shall remain in effect upon the expiration or termination of this Agreement in perpetuity, unless one of the exceptions set forth above becomes applicable to the applicable Confidential Information. The Parties acknowledges that the Disclosing Party may not have an adequate remedy in the event that the Receiving Party breaches its confidentiality obligations and that the Disclosing Party may seek an injunction or other similar equitable relief without posting a bond or other similar security requirement.
7. RIGHTS IN DELIVERABLES. Upon full payment for the Services, Client shall obtain all worldwide rights, titles and interests in and to all copyrights, trademarks, service marks, trade names, trade dress, designs, images and/or any other intellectual and/or proprietary properties (collectively “Intellectual Properties”) in any Deliverables (which shall expressly exclude any rights in or to any property licensed from third parties or any Company Property). Client understands that there may be limitations contained in agreements with third parties that limit the use and ownership of the third-party materials utilized in the Deliverables prepared by Company under this Agreement and the transfer of such shall be subject to such limitations. Client also agrees that Company may use Deliverables provided hereunder to market its services to third parties unless such material is Confidential Information of Client.
8. COMPANY’S OWNERSHIP OF COMPANY PROPERTY. Client acknowledges that Company (i) possesses certain methodologies, ideas, concepts, strategies, tools, techniques, software, know-how, trade secrets, patents, expertise, proprietary information, generic and business information, processes, procedures, and other intellectual property, which has been created, owned, or developed by or licensed to Company prior to, or independent from, the performance of Services under this Agreement, and all modifications thereof (collectively, the “Company Property”) and (ii) may utilize similar materials provided by third parties in the performance of the Services (collectively, “Third-Party Property”). Company (or the third-party provider) retains all rights, title, control, and interest to (including, without limitation, the unlimited right to use) the Company Property and such Company Property or Third-Party Property, as the case may be, shall be and remain the sole property of Company (or the third-party provider, as the case may be). This Agreement does not transfer to Client title to any materials or intellectual property comprised or contained in any Company Property or Third-Party Property. To the extent such Company Property is necessary to use the Deliverables, Company grants Client a limited, non-exclusive, non-transferable, perpetual, revocable, royalty free, worldwide license to install, operate and use such Company Property or Third Party Property, as the case may be, solely in connection with the Deliverables for so long as Client complies with all terms of this Agreement.
9. NO WARRANTIES. COMPANY DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR ANY DELIVERABLES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING HEREIN, COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE (INCLUDING FOR LOSS OR CORRUPTION OF DATA), OR RESPONSIBLE FOR RESTORATION OF SUCH DATA, IN EACH CASE TO THE EXTENT SUCH DAMAGE RESULTS FROM CLIENT’S INSUFFICIENT TESTING OF ANY ON-PREM SOFTWARE PRIOR TO DEPLOYMENT IN A LIVE ENVIRONMENT.
10. MISCELLANEOUS.
a. Representations and Warranties. Each Party represents and warrants to the other Party that it has the full authority to enter into and perform this Agreement, and Client additionally represents and warrants to Company that (i) the performance of the Services or provision of Deliverables as instructed by Client will not create any liability for Company and (ii) Client has obtained all consents and approvals required from third parties who participate in the Deliverables, or as required for Company to provide the Services.
b. Governing Law. The Parties expressly agree that all the terms and provisions hereof shall be construed in accordance with and governed by the laws of the State of California, without giving effect to conflict of laws principles. The Parties expressly agree to submit to the exclusive jurisdiction and venue of the state or federal courts in Los Angeles, California.
c. Dispute Resolution. If any dispute, controversy or claim (collectively, “Dispute”) develops between the Parties with respect to any matter arising out of or relating to this Agreement, the formation or validity thereof, performance hereunder, or the breach hereof which the Parties do not promptly resolve, the Parties shall appoint a senior management representative to negotiate a non-binding resolution upon formal written notice of such a Dispute, and for a period of thirty (30) days from the date of formal written notice from one Party to the other of a Dispute, attempt in good faith to resolve such Dispute. If the Parties do not agree on a resolution to such Dispute during such thirty (30) day period, then either Party may bring legal action with respect to such Dispute.
d. Force Majeure. If either Party is unable to fulfill its obligations hereunder or unable to fulfill its obligations in a timely matter because of a Force Majeure Event (excluding the failure to make payments as required hereunder), such failure will not be treated as a breach of this Agreement, provided that the Party promptly informs the other Party of the reason or reasons for such delay. The term “Force Majeure Event” shall mean an act of war or terrorism, a riot, civil disorder, or rebellion, a fire, flood, earthquake or similar act of God or a strike, lockout, similar labor dispute, or other factors or forces outside of the Parties’ reasonable control.
e. Subcontractors. Client understands and acknowledges that Company may from time to time delegate or subcontract any portion of Company’s obligations set forth herein to a third party (each, a “Subcontractor”). Company shall require all Subcontractors, as a condition to their engagement, to agree to be bound by provisions substantially the same as those included in Section 6, “Confidentiality.” Company shall be responsible for the actions of its Subcontractors as if it committed such actions directly.
f. Relationship of the Parties. Nothing contained in this Agreement shall create any partnership or joint venture between Client and Company (and Subcontractors, if any). Company shall not be deemed to be Client’s employee. For avoidance of doubt, Company will be acting as Client’s agent when providing services or purchasing materials and/or services on Client’s behalf, and Client agrees that all orders placed and contracts entered into by Company on Client’s behalf with Company’s suppliers and other persons may so state.
g. Assignment. This Agreement may not be assigned by either Party (whether directly or indirectly, by operation of law or otherwise) without the prior written consent of the other Party, and any such purported assignment shall be void; provided, however, that Company may assign this Agreement to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or ownership interest without Client’s consent.
h. Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.
i. Entire Agreement. This Agreement, together with any applicable Order Form, constitutes the entire agreement between the parties and is a complete and exclusive statement of the terms of this Agreement and supersedes all prior agreements and communications, written or oral, with respect to the subject matter hereof. This Agreement may not be modified nor may any right of a party be waived orally, but only by a writing signed by both Parties. All applicable Order Forms are incorporated herein.
j. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
k. Non-waiver. No delay or failure on the part of either Party in exercising any right hereunder, and no partial or single exercise thereof, will constitute a waiver of such right or of any other right hereunder.
l. Headings. Headings in this Agreement are for convenience only and are not to be used for interpreting or construing any provisions hereof.
m. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
n. Notices. All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to each Party at its respective address provided on the most recent Order Form.
o. Survival. The rights and obligations of the Parties hereto which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes including, without limitation, the provisions of Section 4 through Section 10 shall survive any termination or expiration of this Agreement.
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