Last Updated: November 1, 2016
This Inbox Service Beta Agreement (“Agreement”) is made between Zendesk, Inc., a Delaware corporation, its Payment Agent or any of its successors or assignees (“Zendesk”) and You. By accepting this Agreement or by using the Inbox Service (as defined below), You represent and acknowledge that You have read, understood, and agree to be bound by this Agreement as it governs Your use of and access to the Inbox Service. The Inbox Service made available to You pursuant to this Agreement may be utilized and tested in association with a subscription to a Service (as defined in the Master Subscription Agreement available at www.zendesk.com/company/terms (the “Master Subscription Agreement”)). Your use of a Service, if any, shall be governed by the Master Subscription Agreement, except as explained in Section 3 below. Your use of the Inbox Service shall be governed by this Agreement. By entering into this Agreement, You represent and warrant that You have the authority to bind the owner, and all Agents authorized under the account for a Service (the “Account”) to the Agreement. If the Account is owned, controlled or operated by or on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to this Agreement, in which case the term “You” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree to the terms herein, You must not accept this Agreement or use the Inbox Service. Capitalized terms used in this Agreement and not defined herein shall have the meanings set forth in the Master Subscription Agreement.
- SCOPE OF AGREEMENT
You are being invited by Zendesk to access and use a beta service developed by Zendesk (the “Inbox Service”). Zendesk shall retain sole and absolute discretion as to whether the Inbox Service will be made available to You. You are not required to utilize or enable the Inbox Service, but if You elect to do so, Your use of and access to the Inbox Service shall be subject to the terms of this Agreement. Zendesk may charge for use and access to the Inbox Service or may provide the Inbox Service for no charge. Zendesk reserves the right to start charging or revise fee amounts at any time, at its sole discretion, under this Agreement or after the Inbox Service is incorporated into a Service or otherwise made generally available. Further, You acknowledge and agree that (a) Zendesk’s obligations under the Master Subscription Agreement with regard to any Deployed Associated Service, including but not limited to Advanced Security, Regional Data Hosting or Priority Support shall not apply to the Inbox Service; (b) Zendesk’s obligations, representations and warranties contained in a Data Processing Agreement that may have been executed between You and Zendesk shall not apply to the Inbox Service; and (c) Zendesk’s obligations with respect to any certifications, including but not limited to, SOC 2, SSAE-16, PCI DSS, ISO 27001 or HIPAA shall not apply to the Inbox Service.
2.1 You acknowledge and agree that in permitting access to and use of the Inbox Service, Zendesk will be disclosing to You certain confidential, proprietary and/or trade secret information related to the Inbox Service or Zendesk (the “Confidential Information”). Such Confidential Information shall include, without limitation, any know how, trade secrets, security, computer programs, source code, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans, or reports made available to You.
2.2 You agree that You will not, without the express prior written consent of Zendesk, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (a) is or becomes generally available to the public through any means other than as a result of any act or omission by You; (b) is rightfully received by You from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (c) is independently developed by You without any reliance on any Confidential Information.
2.3 At the termination of this Agreement or at any time by request of Zendesk, You will return all Confidential Information in Your possession to Zendesk. You also agree that You will not duplicate, translate, modify, copy, print, disassemble, decompile or otherwise tamper with the Inbox Service or any Confidential Information.
- RIGHTS TO ACCESS AND USE
You acknowledge that You shall have only a limited, nonexclusive, nontransferable, revocable, license to access and use the Inbox Service in connection with an Account that You control to test its functionality and provide Feedback to Zendesk as requested. Your license to access and use the Inbox Service may be revoked at any time at the sole discretion of Zendesk. As a subscriber to the Inbox Service, You have the option to upgrade to a thirty-day trial version of a Service. This Agreement applies during any trial period for a Service. Following any trial period You will be required to agree to the Master Subscription Agreement and pay any associated subscription fees for a Service to continue using a Service. If You subscribe to a Service, no obligations on Zendesk in the Master Subscription Agreement shall apply to the Inbox Service. This includes any commitments Zendesk makes regarding support or maintenance of a Service.
You may provide Zendesk with suggestions, recommendations and other feedback as to the usefulness and functionality of the Inbox Service (“Feedback”). Zendesk shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Inbox Service, a Service, or otherwise use, any suggestions, enhancement requests, recommendations or other Feedback Zendesk receives from You, Agents or End Users.
Either party may terminate this Agreement upon written notice to the other party at any time on ten (10) days written notice (email sufficing). If not earlier terminated, Your obligations and rights pursuant to Section 3 shall terminate upon termination of this Agreement; the foregoing shall not limit Zendesk’s rights pursuant to Section 4 as related to any Feedback provided before or after such termination. Sections 2 and 5-13 and all obligations thereunder, shall survive any termination of this Agreement.
- INTELLECTUAL PROPERTY RIGHTS
Zendesk maintains all rights, title and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to access and use the Inbox Service under this Agreement do not convey any additional rights in the Inbox Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Inbox Service as expressly herein, all rights, title and interest in and to the Inbox Service and all hardware, software and other components of or used to provide the Inbox Service, including all related Intellectual Property Rights, will remain with and belong exclusively to Zendesk.
- ABSENCE OF WARRANTIES; ASSUMPTION OF RISK
7.1. The Inbox Service may contain defects which may be material and are not expected to operate at the level of performance or compatibility of a final product offering. The Inbox Service may not operate correctly and may be substantially modified or withdrawn at any time. Access to and use of the Inbox Service by You is entirely at Your own risk. IN NO EVENT SHALL ZENDESK BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THE INBOX SERVICE, EVEN IF ZENDESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE INBOX SERVICE.
7.2 THE INBOX SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE INBOX SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE INBOX SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
You agree to indemnify and hold Zendesk and its affiliates harmless from any losses (including attorneys fees) that result from any claims by You or any third party related to Your access to and use of the Inbox Service, any act or omission by You or any Agent in violation of this Agreement or any claims by a third party regarding use and disclosure of Personal Data.
- PUBLICITY LICENSE
You hereby grant Zendesk a nonexclusive, worldwide, fully paid-up, royalty-free license, for the term of this Agreement, to use Your name and associated logos (collectively, “Your Marks”) to enable Zendesk to exercise its rights and perform its obligations under this Agreement and allow Zendesk to publicize and otherwise market Your use of the Inbox Service in any medium. Any use of Your Marks by Zendesk shall be in accordance with Your reasonable trademark usage policies if such policies are communicated to Zendesk.
- SERVICE DATA
10.1 We collect and store information that is created, inputted, submitted, posted, transmitted, stored or displayed by You, Your Agents and End-Users in the process of using the Inbox Service. Such information may include personal information or other sensitive information that You, Your Agents or End-Users choose to include. We refer to any information described above as “Service Data” for purposes of this Agreement. You hereby grant Zendesk the right to access, use and process Service Data, which may include the Personal Data of Your Agents and End-Users, as needed to, provide the Inbox Service. Additionally, You have obtained the consent of Your End-Users for the same. Further, We collect analytics information when You use the Inbox Service to help us improve the Inbox Service. We partner with a third party to either display advertising the Inbox Service or to manage our advertising on other sites. Our third party partner may use technologies such as cookies to gather information about Your activities on the Inbox Service and other sites in order to provide You advertising based upon Your browsing activities and interests. If You wish to not have this information used for the purpose of serving You interest-based ads, You may opt-out by clicking here (or if located in the European Union click here). Please note this does not opt You out of being served ads and You will continue to receive generic ads.
10.2 In the Inbox Service, analytics information may consist of the feature and function of the Inbox Service being used, the associated domain name, the username and IP address of Your Agent or End-User (which may include personal information if the personal information was incorporated into the username) and additional information required to detail the operation of the function and which parts of the Inbox Service are being affected. The analytics information We collect may include elements of Service Data related to the function the Agent or End-User is performing. As such, the analytics information We collect may include personal information or sensitive business information. Any Service Data in the Inbox Service is subject to this Agreement and is not governed by the Master Subscription Agreement (including any terms related to Deployed Associated Services).
All notices to be provided by Zendesk to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to us in writing by Courier or US Mail to the following address: Zendesk, Inc., Attn: Legal Department, 1019 Market St., San Francisco, CA 94103 USA. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
- GOVERNING LAW
This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Inbox Services by You, Agents or End Users.
- ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
13.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the Zendesk Group or in connection with any merger or change of control of Zendesk or the Zendesk Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13.2 This Agreement constitutes the entire agreement, and supersedes any and all prior agreements between You and Zendesk with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof.
13.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Inbox Services following the effective date of any such amendment may be relied upon by Zendesk as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
- WAIVER; SEVERABILITY
Failure of Zendesk to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.