Terms Of Service
Last Update: 5/26/2022
Z9 reserves the right at any time to modify these Terms of Service and to impose new or additional terms or conditions on Client's use of Z9 products and services. Such modifications and additional terms and conditions will be effective immediately and incorporated into these Terms of Service. Your continued use of the Z9 products or services will be deemed acceptance thereof.
Client agrees to provide Z9 with a valid email address(es) for important and legally required communications. Client agrees to update Z9 as needed to ensure communication and further agrees that Z9 is not responsible for undelivered email, out of date email addresses, changed email addresses, changed systems or any other issue that may prevent email from being delivered. Z9's e-mail communications will be considered received by the Client when they are transmitted by Z9.
Pricing and Fees
Z9 reserves the right to change the pricing and fees for products and services provided by Z9. Z9 will notify Client of such changes via email. For changes in recurring licensing fees and hourly service rates, Z9 will give a thirty (30) days notice prior to changing fees/rates. If Client does not agree to the pricing and fees, Client may elect to cancel products or services in accordance with the Z9 cancellation policy.
Request Inquiries and Invoice Inquiries
Z9 does not charge Clients for inquiring about a new request or for inquiring about an invoice. All estimates and bids are provided free of charge unless otherwise specified in advance.
Invoicing and Payments
Z9 typically invoices monthly, but shall submit invoices to Client as often as weekly.
Client agrees to pay invoices within 15 days (Net 15).
Payments that are not received within 15 days from the date of the invoice will be considered Past Due.
Payments that are not received within 28 days from the date of the invoice will be considered Late and subject to late payment fees.
If there are any questions or concerns about an invoice, Client should inquire immediately so as to resolve any issues before the invoice is due. Z9 will do our best to help clarify and/or resolve any such issues in a timely manner.
Corrections and updates to an invoice will not change the due date.
Received payments will be applied to the oldest invoices first.
Time expenses will be invoiced at an agreed upon hourly rate or rates.
Material expenses will be invoiced without any markup.
Payment will be considered received when Z9 receives a check, an ACH deposit, or a valid credit card transaction.
Licensing Fees and License Renewal
For products and services hosted by Z9 and for products and services self-hosted by Client, Client agrees to pay in advance of use of said products and services. Typically, Z9 will invoice in advance on a "per month" or "per year" recurring time period for said products and services.
In the event of a late payment, Z9 reserves the right to invoice for all other outstanding services that have yet to be invoiced “due on receipt”.
Any outstanding balances not paid when due will entitle Z9 to withdraw from and halt any 1) further progress of fixed cost project(s) of Client, 2) further progress of time and material request(s) of Client, 3) renewal of self hosted licensed products/services, and 4) continuation of Z9 hosted products/services.
Client agrees that Z9 is not responsible in any form for any damages, expenses, or other issues incurred by Client as result of Z9 halting the use of Z9 products or services because of an invoice that is past due.
In the event that a Client payment is late, the Client irrevocably covenants, promises and agrees to indemnify Z9 and/or its’ assigns and to hold Z9 and/or its’ assigns harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature which Z9 and/or its’ assigns may sustain or to which Z9 and/or its’ assigns may become subject arising out of or relating in any way to the halting of work because of an invoice that is past due, including, without limitation, in each case attorneys' fees, costs and expenses actually incurred in defending against or enforcing any such losses, claims, expenses, suits, damages or liabilities.
Halting of products or services by Z9 does not relieve Client of the obligation to pay all invoices.
In the event of a late payment, Z9 may immediately charge a $50 late fee to Client's next invoice. Z9 may send late notices as often as every 14 days. Client acknowledges that Z9 may charge a $50 fee for each late notice that is sent.
Time and Material Requests
Any support services performed on behalf of Client that are not expressly covered under a valid contract and/or written agreement with Z9 will be billed at the appropriate time and material hourly rates. Except for the non chargeable services listed above, Z9 bills for all time and material expenses incurred as the result of providing services for Client.
Z9 charges for all time incurred as the result of acquiring, processing, and/or delivering materials required so as to complete a Client request.
Z9 charges for all time incurred providing consulting and/or advice, regardless of the means in which the consulting and/or advice are provided.
Z9 charges for all phone calls, emails, faxes, meetings, travel time, and any other interaction time incurred with Client, Client vendors or Client partners that is required so as to complete a Client request.
Z9 invoices all time and material charges based on actual hours and actual material costs. Estimates provided for time and material requests are just approximations and do not affect the actual charges invoiced.
Z9 invoices time and material fees based on "actual" time and material fees that were incurred during that time frame. Invoicing of time and material fees is not dependent on the completion status and/or functional status of the actual work being performed.
Z9 Digital L.L.C. does not guarantee, warrant, provide free updates for, or provide free fixes for work that has been completed as a time and material request. If a time and material request requires additional effort to modify, update, and/or fix then additional time and material fees will be incurred.
All work performed at a Client site, including return visits for any reason, will be billed from the time of arrival to the time of departure. All travel time to and from the Client site will be billed.
Chargeable time and material services include, but are not limited to: Requisitioning of Materials, Consulting, Research, Development, Diagnostics, Phone/Email/Fax Support, Project Management, Quality Control, Testing, and Training.
Fixed Cost Projects
Typically, Z9 does not provide fixed cost estimates for work that require less than 8 hours of effort.
A signed contract and/or written agreement must be in place for a request to be considered a fixed cost project.
Unless agreed upon otherwise, once a fixed cost project has been accepted, Z9 charges 50% of the cost of the project in advance of any work being performed. Projects will only be scheduled once the initial deposit has been received. Depending on the size and duration of the project, additional advance charges may be assessed at 25%, 50%, and 75% completion of the project. Once the project is 100% finished, a final charge will be billed for the balance of the fixed cost project.
All additional time and material requests, change requests, and any other expenses not covered by the defined scope of a fixed cost project will be invoiced separately.
Any services performed by Z9 at the request of Client not expressly covered by an existing fixed cost project agreement will be considered a Change Request. Z9 bills for all Change Requests at the appropriate rates above and beyond any existing agreements.
Client understands and agrees that Z9 may use any personnel, including, but not limited to, assistants, trainers, specialists and/or administrative staff employed and/or contracted by Z9 to assist in the completion of requests performed for the Client.
Client agrees to reimburse Z9 for all out-of-pocket expenses incurred in connection with a time and material request or incurred in connection with a fixed cost project where the expense was not specifically covered by the scope of a fixed cost project. Such out-of-pocket costs for which Client agrees to reimburse Z9 Digital L.L.C. include, but are not limited to: travel expenses, postage, and stock photography.
Z9 retains all proprietary rights in, and to, its software and other proprietary materials such as copyrights, trademarks, trade secrets, patents and confidential information. Z9 does not grant the Client any rights in, or to, the software or other Z9 proprietary material. During the term of this Agreement, Z9 hereby grants the Client a non-exclusive license to use the Z9 software per the terms of the Software License Agreement that applies to the software being used.
Upon termination of this Agreement, the Client shall be prohibited from using Z9's software or proprietary materials in any manner or form.
All Software Modifications Become Part of the Software
Z9 reserves all ownership and copyright rights to the intellectual property that is the software. Any modifications Z9 makes to a software product or service on behalf of a Client request become part of what is the software. Client does not own the software. Client may use and modify the software per the terms of the Software Licensing Agreement that applies to the software being used. Paying Z9 for software customizations does not grant Client any ownership rights.
No Assignment - Sub License
Client may not transfer, license or provide another person or company access to use the Z9 software.
For Z9 products and services that receive software updates and where the Client is either paying for a software update subscription or the product/service includes software updates, the Client acknowledges that certain Z9 software updates may conflict with the Client supplied custom code and that any such conflicts are solely the Client's responsibility and under no circumstance shall Z9 be responsible for resolving those conflicts or in any way be liable therefor.
Self Hosted Data Modifications
For self-hosted products/services, Z9 is not responsible for application issues that arise out of Client access to the database that modifies the data. For application integrity, Z9 recommends using Z9 provided API's if data updates are needed.
Z9 Commerce Base Support
For the "Z9 Commerce Base Support" service, base support includes:
- Development Server
- Z9 will set up a dedicated development server hosted on our own infrastructure for use by Z9 developers for the purpose of setting up sites, configuring sites, and testing sites outside of the live production environment.
- Deployment System
- Z9 will provide a deployment system hosted on our own infrastructure that allows Z9 developers to push software updates, set up servers, and set up sites.
- "Managed Hosting" services needed to keep the sites operating.
- Set up servers.
- Replace/upgrade servers to "latest greatest" every three years.
Important for Linux (operating system), Apache (web service), MySQL (database) and PHP (programming language).
- Migrating databases and/or sites to new servers.
- Scaling. Adding additional servers (horizontal scaling) and/or increasing the cpu, memory, hard drive space of a server (vertical scaling).
- Management of server/database backups.
- Restart services/server, as needed.
- Updates to server management tooling.
- Disk space monitoring
- Server monitoring
- Database monitoring
- Backup monitoring
- Log Analysis to monitor hits, pages, bandwidth, and rendering time. (currently in development)
- Hosting Related Site Setup
- Configure server to host site.
- Set up the site database.
- Create the initial "default" site configuration in the code.
- Set up DNS, including working with Client customers to assist with DNS setup.
- Set up SSL certificate.
- Software Updates (included with the Z9 Commerce Agency Plan)
- Update the Z9 Commerce software with latest Z9 updates at least once a month.
- Training (included with the Z9 Commerce Agency Plan)
- Provide initial training of one Client staff member on how to use the Z9 Commerce software.
- Provide additional training and/or training documentation to one Client staff member on how to use newly released features and functionality.
- Client will be responsible for training additional staff members.
Any support not specifically covered by "Base Support" would be considered "Premium Support".
Examples of "Premium Support" include:
- Custom/new themes. (look and feel of stores)
- Custom/new integrations. (decorators, suppliers, vendors, customer, internal systems)
- Custom/new reporting.
- Custom/new functionality.
Service Level Commitment
For Z9 hosted services, Z9 aims to provide a high quality reliable service based on its own infrastructure of servers and software and will use its best efforts to provide 100% uptime. Scheduled and non-scheduled server maintenance and upgrades can take the system off-line which will make the system unavailable (collectively referred to as "server maintenance events"). Z9 will use its best efforts to notify Client of these server maintenance events, but it may not always be practical to do so. In addition Z9 may from time to time use third party suppliers and Z9 is unable to predict or guarantee service level commitments in respect to third party suppliers. Z9 hosted services contain many variables, including the use of third party services, that can affect performance and uptime and therefore Z9 can not guarantee service.
Use of Client's Information and Content
For Z9 hosted services, during the term of this Agreement, the Client hereby grants Z9 a non-exclusive license to use the Client provided information and content, including Client's trademarks and copyrights, as needed in order for Z9 to provide the hosted service.
Client Duties and Obligations
For Z9 hosted services, Client represents and warrants that:
- Clients content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation.
- Clients content does not infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person.
- Client owns its content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the content on and within its Web Site.
- Client warrants that its content will not be used in connection with any illegal activity.
- Client warrants that it shall not engage in any harmful activities, including, but not limited to, traffic bursting.
- Client warrants that its content will not contain any abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious content.
The products and services provided by Z9 are provided AS IS, WITHOUT WARRANTY OF ANY KIND TO Client OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; AND 7) TITLE. Client AGREES THAT ANY EFFORTS BY Z9 TO MODIFY ITS LICENSES, PRODUCTS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY Z9I WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. Client FURTHER AGREES THAT Z9 SHALL NOT BE LIABLE TO Client OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF Z9 WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WAS GROSSLY NEGLIGENT. MODIFICATIONS MADE TO Client'S WEB SITE BY Client OR ANY THIRD PARTY VOIDS ANY REMAINING EXPRESS OR IMPLIED WARRANTIES. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Client. In such jurisdictions, Z9's liability is limited to the greatest extent permitted by law. Acceptance of delivery of products or services shall constitute a waiver and release of Z9 by Client for any claim for damages, setoff, discount or other liability on account of delay.
Governing Law and Jurisdiction
The construction, validity and performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Michigan. The parties agree that venue and jurisdiction for any litigation arising out of, related to, or regarding the validity of, this Agreement shall lie in the County of Oakland, State of Michigan. In the event of litigation the prevailing party shall be entitled to an award of attorney's fees and costs, including expert witness fees.
This Agreement supersedes any and all other agreements, either oral or in writing, between the parties with respect to the matters stated herein, and this Agreement contains all of the covenants and agreements between the parties with respect thereto.
In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely resembles the intent and economic effect of the invalid provision.
By Client: All accounts can be canceled by the Client at any time by emailing firstname.lastname@example.org. Client will receive a return email confirming account cancellation. No refunds for payments already received will be given to the Client.
By Z9: All accounts can be canceled by Z9 at any time by sending an email only to the email address provided by the Client. No refunds for payments already received will be given to the Client.
Right to Suspend or Terminate Services
Z9 reserves the right to, without notice, suspend or terminate any Service at any time for any reason. Reasons for suspension or termination include, but are not limited to:
- Late Payment
- Harassing, threatening, abusing, offending Z9 employees or agents.