Zello for First Responders Agreement

Term and Conditions

Last Updated: March 24, 2020

BY ENTERING THE ZELLO FOR FIRST RESPONDER PROGRAM (“PROGRAM”) AND USING THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THESE TERMS AND CONDITIONS OF THIS FIRST RESPONDER AGREEMENT (THIS “AGREEMENT”). IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL, THE TERM “PROGRAM MEMBER” 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 THIS AGREEMENT, IN WHICH CASE THE TERM “PROGRAM MEMBER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Zello may revise this Agreement from time to time. If Zello does revise this Agreement, the revised Agreement will supersede prior versions. Unless Zello says otherwise, revisions will be effective upon the Last Updated date indicated at the top of this Agreement. Zello will provide Program Member advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Zello has on file. For other revisions, Zello will update the Last Updated date at the top of the page. Zello encourages Program Member to check the Last Updated data whenever Program Member visits Zello’s website or account portal. Program Member’s continued access or use of the Services constitutes Program Member’s acceptance of any revisions. If Program Member does not agree to the revisions, Program Member should stop using the Services.

IMPORTANT NOTE: ZELLO DOES NOT PROVIDE WARRANTIES OR INDEMNITIES FOR THE SERVICES, AND THESE TERMS LIMIT ZELLO’S LIABILITY TO YOU.

Program Member and Zello Inc. (“Zello”) hereby agree as follows:

1. SERVICES

This Agreement shall apply to Program Member’s use of Zello’s First Responder Program services (“Services”) pursuant to a formal application acceptance at Zello’s sole discretion (the “Zello Approval”). This Agreement represents the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any other document, and no terms included in any other non-Zello document shall apply to the Services. This Agreement supersedes any terms of service within the Services that may be presented to a Program Member user.

Subject to the terms and conditions of this Agreement, Zello hereby grants Program Member a non-exclusive right to access and use the Services for the purposes and within the scope expressly approved in the Zello Approval. As part of the registration process, Program Member will identify the administrative user name(s) and passwords for Program Member’s company account(s). With respect to any software, documentation or data related to the Services (“Software”) that is distributed or provided to Program Member for use on Program Member premises, Zello hereby grants Program Member a non-exclusive, non-transferable, non-sublicensable license to use such Software, solely for purposes of using the Services.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Program Member 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; or remove any proprietary notices or labels.

2.2 Program Member represents, covenants, and warrants that Program Member 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). Program Member 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 Program Member in connection with or relating to the Service (“Program Member Content”). Although Zello has no obligation to monitor Program Member’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. Program Member shall be responsible for maintaining the security of the Program Member account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Program Member 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 Program Member includes Program Member 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 Program Member’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 Program Member owns all right, title and interest in and to the Program Member 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 Program Member 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. FEES

Program Member will be receiving the Services free of charge, except that Program Member agrees to pay upon request any amounts (including costs, taxes, duties or the like) required to be passed through by Zello under applicable law or otherwise in order to provide the Services to Program Member.

5. TERM AND TERMINATION

Either party may terminate this Agreement at any time and for any reason. Further, Zello may immediately suspend access to the Services if Program Member 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. DISCLAIMERS

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.

PROGRAM MEMBER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE INTERNET BASED AND ARE DIFFERENT THAN THAT OF TRADITIONAL COMMUNICATIONS METHODS.  SPECIFICALLY, PROGRAM MEMBER ACKNOWLEDGES AND AGREES TO INFORM ALL EMPLOYEES AND OTHER USERS THAT THE SERVICES WILL NOT FUNCTION IF THERE IS A SERVICE FAILURE DUE TO ANY OF THE FOLLOWING CIRCUMSTANCES: (A) POWER FAILURE, (B) SUSPENDED OR TERMINATED BROADBAND SERVICE, (C) DEVICE MALFUNCTION, OR (D) ANY OTHER SERVICE OUTAGES NOT DESCRIBED HEREIN. PROGRAM MEMBER ACKNOWLEDGES AND AGREES THAT NEITHER ZELLO, NOR ITS UNDERLYING CARRIER, OR ANY OTHER THIRD PARTIES INVOLVED IN THE ROUTING, HANDLING, DELIVERY OR OTHER TRANSMISSION OF COMMUNICATIONS MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, LOSS, FINE, PENALTY OR COST (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) AND PROGRAM MEMBER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO THE PROVISION OF THE SERVICES TO PROGRAM MEMBER.

7. LIMITATION OF LIABILITY

ZELLO (AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES) SHALL NOT 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 GREATER OF (A) AGGREGATE FEES PAID TO ZELLO IN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM FIRST AROSE AND (B) ONE HUNDRED DOLLARS ($100), 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.

IN ADDITION, PROGRAM MEMBER AGREES THAT ABSENT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY ZELLO, ZELLO WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE SUSTAINED BY PROGRAM MEMBER OR ANY USER OR OTHER THIRD PARTY DUE TO ANY FAILURE IN OR BREAKDOWN OF THE COMMUNICATION FACILITIES ASSOCIATED WITH PROVIDING THE SERVICES, OR FOR ANY DELAY, INTERRUPTION OR DEGRADATION OF THE SERVICES WHATSOEVER.

8. INDEMNIFICATION

Program Member will defend at its expense Zello against any Claim (i) alleging that the Program Member Data infringes any third party intellectual property right or violates any applicable law or regulation or (ii) Program Member’s use or misuse of the Services, including its provision of emergency or other first responder services using the Services.

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 Program Member will be in writing and sent to the email address for Program Member’s account provided by Program Member. Any notices in connection with this Agreement to Zello will be in writing and sent to the following address (or such other address as may be properly specified by written notice hereunder):

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