Master Subscription Agreement

Term and Conditions

BY ACCEPTING THIS AGREEMENT OR USING THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THESE TERMS AND CONDITIONS OF THIS MASTER SUBSCRIPTION AGREEMENT (“TERMS AND CONDITIONS”).  IF YOU ARE ENTERING INTO THESE TERMS AND CONDITION AS AN INDIVIDUAL, THE TERM “CUSTOMER” REFERS TO YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Customer and Zello, Inc. (“Zello”) hereby agree as follows:

1. ORDER FORMS; SERVICES

These Terms and Conditions shall apply to Customer’s use of Zello’s subscription services (“Services”) ordered by Customer pursuant to an ordering document or online order entered into between Customer and Zello and specifying the Services to be provided hereunder, the Fees payable and the applicable Subscription Term (“Order Form”). These Terms and Conditions and all Order Forms (collectively referred to as this “Agreement”) represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Zello ordering document, and no terms included in any such purchase order or other non-Zello ordering document shall apply to the Services. In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form shall control. In addition, this Agreement supersedes any terms of service within the Services that may be presented to a Customer user.

Subject to the terms of this Agreement and the applicable Order Form(s), Zello hereby grants Customer a non-exclusive right to access and use the Services during the applicable term of such Order Form(s) (“Subscription Term”). As part of the registration process, Customer will identify the administrative user name(s) and password§ for Customer’s company account(s). With respect to any software, documentation or data related to the Services (“Software”) that is distributed or provided to Customer for use on Customer premises, Zello hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the applicable Subscription Term, solely for purposes of using the Services.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, and will not permit any third party to, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software (except to the extent such restrictions are contrary to applicable law); modify, translate, or create derivative works based on the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Zello’s standard published policies then in effect and all applicable laws and regulations (including export laws). Customer is solely responsible for all data, information, text, content and other materials that are uploaded, posted, delivered, provided or otherwise transmitted or stored by or on behalf of Customer in connection with or relating to the Service (“Customer Content”). Although Zello has no obligation to monitor Customer’s use of the Services, Zello may do so and may prohibit any use of the Services it believes may be in violation of the foregoing. Customer shall be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Zello includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes Customer Content. The Receiving Party agrees: (i) to take reasonable precautions to protect Disclosing Party’s Proprietary Information and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any of Disclosing Party’s Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2 Zello shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s suggestions or other feedback, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3 Customer owns all right, title and interest in and to the Customer Content. Notwithstanding anything to the contrary, Zello shall have the right to collect and analyze data and other information relating to the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Zello will be free (during and after the term of this Agreement) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Zello offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

4. PAYMENT OF FEES

Unless Zello chooses to bill through an invoice (in its sole discretion), Customer will be required to provide Zello (or its payment processor) with information regarding its credit card or other payment instrument. Customer represents and warrants that such information is true and that it is authorized to use the payment instrument. Customer will promptly update its account information with any changes that may occur. Customer will pay Zello the fees described in the applicable Order Form(s) for the Services in accordance with the terms therein (the “Fees”), and Customer hereby authorizes Zello to bill its payment instrument for such Fees. If Zello chooses to bill through an invoice, full payment for invoices issued in any given month must be received by Zello thirty (30) days after the mailing date of the invoice. Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower. Customer shall be responsible for all taxes associated with Services other than taxes based on Zello’s net income.

5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement will commence on the Effective Date and continue until there are no more Order Forms in effect.  The initial Subscription Term of each Order Form (“Initial Term”) will be as specified in the applicable Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Term, unless either party provides the other with written notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term.

5.2 In addition to any other remedies it may have, either party may also terminate this Agreement (i) upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement, (ii) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (iii) upon the other party’s making an assignment for the benefit of creditors, or (iv) upon the other party’s dissolution or ceasing to do business. Further, Zello may immediately (or upon five (5) days’ notice in the case of non-payment of Fees) suspend access to the Services if Customer materially breaches this Agreement until such breach is cured. The provisions of Sections 3-5, 6.2, and 7-9 shall survive any termination or expiration of this Agreement.

6. WARRANTY AND DISCLAIMER

6.1 Zello represents and warrants that the Services will operate in material conformity with any specifications set forth in writing by Zello.

6.2 EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN SECTION 6.1, ZELLO HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE. ZELLO DOES NOT WARRANT THAT THE SERVICES 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.

7. LIMITATION OF LIABILITY

EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, EITHER PARTY’S BREACHES OF SECTION 3.1, CUSTOMER’S BREACHES OF SECTION 2, OR USE OF THE SERVICE OR SOFTWARE OR ANY PART THEREOF EXCEPT AS EXPRESSLY PERMITTED HEREBY, NEITHER PARTY (NOR ANY OF ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES) SHALL BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF THIS AGREEMENT OR ANY DELAY OR INABILITY TO USE THE SERVICES OR (B) ANY OTHER DAMAGES IN EXCESS OF THE AGGREGATE FEES PAID (PLUS AMOUNTS PAYABLE) TO ZELLO UNDER THE APPLICABLE ORDER FORM IN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM FIRST AROSE, IN EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

8. INDEMNIFICATION

8.1 Zello will defend at its expense Customer against any third-party claim, suit or proceeding (“Claim”) alleging that the Services infringe any third party intellectual property right; provided that Customer (a) promptly gives written notice of the Claim to Zello; (b) gives Zello sole control of the defense and settlement of the Claim (provided that Zello may not settle any Claim unless it releases Customer of all liability); and (c) provides to Zello, at Zello’s cost, all reasonable assistance. Notwithstanding the foregoing, Zello will have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon (i) any unauthorized use, reproduction, or distribution of the Services or any breach of this Agreement by Customer, (ii) any combination of the Services with other products, equipment, software or data not supplied, authorized or recommended by Zello, (iii) any modification of the Services by any person other than Zello or its authorized agents or contractors or (iv) any activity after Zello has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services. If Zello reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, Zello will procure, at Zello’s expense, for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, Zello may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid amounts for unused Services.

8.2 Customer will defend at its expense Zello against any Claim alleging that the Customer Data infringes any third party intellectual property right or violates any applicable law or regulation; provided that Zello (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it releases Zello of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

9. MISCELLANEOUS

Neither party will have the right to assign this Agreement, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of Texas, without regard to the conflicts of law provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. Without limiting anything herein, and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions and power failures. For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. Any notices in connection with this Agreement to Zello will be in writing and sent to the following address:

Zello Inc.
Attn: Legal
1717 W 6th Street, Suite 450
Austin, Texas 78703
United States of America