Terms of Services

You Retain Ownership of Your Data. You retain ownership of the intellectual property rights in your Data. Zarca does not claim ownership over any of your Data. This Agreement does not grant us any licenses or rights to your Data, except for the limited rights needed for us to provide the Services, and as otherwise described in this Agreement.

Deleting Data. We permanently delete all PII within 30-days of discontinuing support for an active Service term. Zarca reserves the right to delete any and all End User Data that is older than 5 years from its database at any time, with 30 days written notice to the End User. End User is solely obligated to back-up and download all necessary Data relating to the Services. Zarca shall not have any liability for the deletion of any Data from its database in accordance with these terms.

End User shall not, and shall not permit any employee or other third-party under its direction, to do any of the following prohibited acts, which may result in the immediate termination of Services and other remedies:

1. copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Service in order to ascertain the source code for the Service;
2. transmit pornographic, obscene, threatening, defamatory, harassing, hate-oriented, defamatory, racist, illegal, or otherwise objectionable material using the Service;
3. hide the identity of any sender of electronic communications;
4. interfere with, disrupt or manipulate the Service, its networks or servers;
5. successfully gain or attempt to gain unlawful or unauthorized access to the Service or accounts, systems and networks connected to the Service by password mining or other unauthorized means;
6. engage in any activity that violates any law, including, but not limited to the CAN SPAM Act, the Health Insurance Portability and Accountability Act, the Children's Online Privacy Protection Act, or any third party right, including infringing any intellectual property right of another, privacy right or publicity right; send, or promote or condone the sending of unsolicited email to individuals not affiliated with the End User;
7. upload, download, or distribute files that contain viruses, do not meet the specifications of file type indicated by Zarca, corrupted files or software. Any third party software embedded in the Zarca's website may be used only in conjunction with the Service and may not be used separately; or
8. if deploying anonymous or semi-anonymous surveys, End User shall take all necessary steps to prevent linking a survey response to the identity of that survey participant. End User shall not perform any Data analysis, plant any identifying Data or send email invitations in such way that that would link the identity of survey participants to their responses. If such information becomes available accidentally or through actions of End User, End User shall notify Zarca immediately and refrain from revealing the identify of any survey participant to any other individuals inside or outside End User's organization. End User shall at all times commit to the level of care necessary to ensure compliance with the features that enable deployment of anonymous and semi- anonymous surveys.

Additionally, the Services offer technical support by Zarca staff to assist End Users in the use of the Services. Although not expressly limited, End User understands and agrees that access to technical support professionals by phone and email is limited to a reasonable use of these resources. As such, any use of technical support that is excessive or unreasonable in light of prevailing industry standards may require the approval of Zarca. Such approval shall not be withheld unless End User’s excessive and unreasonable use creates extraordinary costs to Zarca. Upon approval, the parties may agree to accommodate End User’s use by passing the additional costs to End User. However, if an accommodation cannot be agreed upon, Zarca may resort to termination as described in this Agreement.

If End User posts any content that is in violation of these Terms or the law, Zarca reserves the right to remove such content without notice.

Zarca Intellectual Property. Zarca owns all right, title, and interest in and to the Services, Materials, and Zarca’s registered and unregistered, domestic and foreign, trademarks, service marks, trademark applications, service mark applications, trade names, patents, patent applications, copyrights, copyright applications, discoveries, know-how and trade secrets of and relating to the Services, including any and all surveys created by Zarca prior to consulting with End User, all surveys created during the Joint- Questionnaire-Design process with End User, and all Reports, Findings, and Analysis created by Zarca (all collectively “Intellectual Property”).

Maintaining Zarca Intellectual Property Notices. End User shall not remove any copyright or trademark notices attached to Zarca Intellectual Property, including those appearing on all templates, reports, communications, and electronic surveys at any time during or after the terms of this Agreement, unless specifically authorized by Zarca.

Client Intellectual Property. End User owns all right, title and interest in its own intellectual property including Zarca Interactive Terms of Service v11A 22-2-18 its trademarks, questionnaires independently developed by End User using the Services but without consultation from Zarca, provided they are not derived from Zarca‘s Intellectual Property, as well as survey participant responses collected through the Services.

Limited License to Your Content. You grant Zarca a worldwide, royalty free license to use, reproduce, modify, adapt, create derivative works, and otherwise use your Data and intellectual property, but only for the limited purposes of providing the Services to you and as otherwise permitted by Zarca’s privacy policies. For example, Zarca needs access to your participant responses and Data in order to develop reports for your use. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide Zarca with feedback about the Services, we may use your feedback without any obligation to you.

Subscriptions. Some of our Services are billed on a subscription basis (“Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “Billing Cycle”). Billing Cycles typically commence before the Contract Start, and correspond with the “Billed On” and “Due By” dates stated on the Sales Order Form, depending on what subscription plan you select when purchasing a Subscription. Payment for the first year of multi-year contracts will be Billed On the signing of the Sales Order Form, and will be Due By 30 days from the date of its signature.

Fees for Services. Clients shall pay all fees stated in the Sales Order Form on the dates specified in the Sales Order Form.

Refunds. All orders are non-cancellable and non-refundable.

Nonpayment. Zarca may assess a late fee of 1.5% per month on any balance that remains unpaid after the Due By date. Failure to pay any invoice within 60 days of the Due By date is a material breach of this Agreement that entitles Zarca to immediately stop the Services without further notice and demand payment in full for all outstanding amounts, including payments owed through the duration of the final Contract End Date and accrued late fees.

Price Changes. Zarca may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Zarca will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.

Services Modifications. Zarca may from time to time make modifications to the Services in the form of software upgrades and software releases based on a variety of factors including End User’s feedback. Because Zarca must use substantial resources to make and support such changes, and because such changes are derived from Zarca’s existing Intellectual Property, Zarca owns all right, title, and interest in and to such changes.

Service Retirement. Zarca may add, alter, or remove functionality from a Service at any time without prior notice. Zarca may also limit, suspend, or discontinue a Service at its discretion. If Zarca discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Data from that Service. Zarca may remove content from the Services at any time in our sole discretion, Zarca Interactive Terms of Service v11A 22-2-18 although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.

New Services. Zarca may introduce new products and services to complement our existing Services. If such Services are not included in your existing Subscription, Zarca reserves the right and sole discretion to decide whether or not the new Services will be made available you. Such Services may come at an additional cost or may be included within your Subscription license at no cost.

Warranty. Zarca represents and warrants that the Services shall be provided in a workmanlike manner that conforms to the relevant, prevailing industry standards.

WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTY ABOVE, ZARCA PROVIDES THE SERVICES AS IS AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUIET ENJOYMENT. END USER UNDERSTANDS THAT ZARCA IS DEPENDENT ON CERTAIN THIRD-PARTIES AND ON MATTERS OUTSIDE ITS CONTROL FOR DELIVERING THE SERVICES. ZARCA EXPRESSLY DISCLAIMS THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERRORFREE, ACCURATE OR RELIABLE. ANY MATERIAL OR DATA OBTAINED OR DOWNLOADED THROUGH THE SERVICES, INCLUDING PARTICIPANT RESPONSES, MOBILE APPLICATIONS, REPORTS, AND SAMPLE SURVEYS, IS DONE AT END USER’S OWN RISK AND END USER SHALL REMAIN SOLELY RESPONSIBLE FOR ANY DAMAGE CAUSED BY SUCH MATERIAL, INCLUDING ANY LOSS OF DATA OR DAMAGE TO END USER’S COMPUTER SYSTEMS. ZARCA SHALL NOT BE RESPONSIBLE FOR END USER’S FAILURE TO STORE, DOWNLOAD, OR BACKUP ITS DATA. END USER SHALL REMAIN RESPONSIBLE TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY AND ALL CONTENT DELIVERED THROUGH THE SERVICES.

LIMITATION OF LIABILITY. ZARCA’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT ARE LIMITED TO DIRECT MONETARY DAMAGES, AND THE AMOUNT OF SUCH DAMAGES SHALL EQUAL THE AGGREGATE FEES PAID BY END USER WITHIN THE PAST YEAR OF SERVICE UP TO A MAXIMUM OF $5000. IN NO EVENT WILL ZARCA BE LIABLE FOR PROVIDING SUBSTITUTE SERVICES OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM, LOST PROFITS, LOST REVENUE, LOST DATA, OR INABILITY TO USE THE SERVICES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ZARCA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. CLIENT ACKNOWLEDGES THAT ZARCA HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY AND THE SAME FORM AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THE PARTIES.

End user acknowledges that Zarca provides a platform from which End User may communicate with survey participants, employees and other constituents. Zarca does not control, edit, or endorse end user's or survey participant's communications and responses. End user shall remain solely responsible to evaluate the accuracy, reliability, completeness and usefulness of any communications, surveys, survey responses, survey results, and similar materials. Zarca shall not be responsible for any errors or omissions in any content or for any loss or damage incurred as a result of content transmitted through the service.

End user represents and warrants that it shall not breach the obligations under Sections 5 and 6 of this agreement.

End User agrees to indemnify, hold harmless, and defend or settle at its own expense Zarca and its directors, officers, employees, and agents against claims for property damage, loss of Data, loss of revenue or profits, death, illness, injury, improper business practices arising out of End User's use of the Services, reliance on the Services and any survey reports, or unauthorized access by persons using End User's login credentials due to End User's negligence. However, End User’s duty to indemnify Zarca shall not apply to any claims or disputes resulting from Zarca's willful misconduct. As a condition to End User’s defense and indemnification of Zarca, Zarca shall give End User: (1) prompt written notice of any action, claim or threat of infringement suit, or other suit within 30 days of its receipt; (2) the opportunity to take over, settle or defend such action, claim or suit at End User’s sole expense; and (3) assistance in the defense of any such action at the expense of End User.

If any Service becomes, or in Zarca’s opinion is likely to become, subject of such a claim of infringement, Zarca must either provide End User the right to continue to use that Service, or replace or modify the Service so it is no longer infringing. If neither of the foregoing is commercially and reasonably available to Zarca, End User shall return all Materials relating to the Services to Zarca, or the Service may be deactivated by Zarca, and Zarca must then refund End User a pro-rated amount of the fees paid for the infringing Service based on the remaining contracted period. Zarca shall have no obligation or liability hereunder for any claim resulting from:

(a) modification of the Services by any party other than Zarca, (b) modification of the Services by Zarca in accordance with End User’s designs, specifications, or instructions; (c) use other than as granted in this Agreement; (d) use of a superseded version of the Services if the infringement claim could have been avoided by using a current version available to End User. This section states the parties' sole and exclusive remedies and liability for any intellectual property rights infringement or misappropriation claims or damages.

Defining Confidential Information. The parties understand the provision of Services may require the use and disclosure of certain confidential information. Unless required by local, state, or federal laws, the End User shall hold in confidence and shall not use or disclose to any third party, or use for any purpose other than as expressly authorized in this Agreement, the terms and pricing of Services under this Agreement, any software or documentation related to the Services, Zarca sample questions and templates, trade secrets, technical know-how, inventions, Materials, product development plans, pricing, marketing plans, client lists and email addresses, distribution lists and all survey responses from surveys, the know-how, proprietary, strategy on communications, reports, and findings, whether disclosed orally or in writing, or other information understood to be Zarca’s confidential information received from the other party (collectively, “Confidential Information”). Confidential Information does not include information that: (a) is known to End User prior to any disclosure and can be so proven by written records; (b) is received at any time by End User in good faith from a third party lawfully in possession of it and having the right to disclose the same, and can be so proven by written records; (c) is as of the date of receipt by End User in the public domain or subsequently enters the public domain other than by reason of acts or omissions of the employees or agents of the End User, which acts or omissions have not been consented to by Zarca, and can be so proven by written records; (d) becomes publicly available through no fault of End User; (e) or is independently developed by or on behalf of End User without resort to Zarca’s Confidential Information as can be shown by reasonable documentary evidence.

This Agreement shall become effective on the Contract Start Date and terminate on the Contract End Date specified in the Zarca Sales Order Form executed by End User, subject to automatic renewal terms as agreed upon by the parties. At the expiration of the term, this Agreement will automatically renew annually for 1 year intervals at Zarca's then current rates, unless End User provides written notice to Zarca of its intent to terminate at least 60 days before the expiration of the Initial Term or any renewal, or otherwise stated in the Sales Order Form. Upon termination of this Agreement or the rights licensed herein, End User shall cease using the Services and related materials immediately. Upon termination, Zarca shall not have any obligation to make available or provide access to the Services. Accordingly, End User should download all information desired prior to the Contract End Date.

Zarca may immediately terminate this Agreement in response to any breach or any action that in Zarca's discretion constitutes a violation of section 5 of this Agreement or any other abuse of the Services. Zarca may terminate this Agreement for any reason by providing 30 days written notice. If Zarca terminates this Agreement for any reason not constituting a breach of this Agreement by End User, Zarca must refund to End User unused charges on a pro-rata basis. End User shall remain responsible for all charges due through the Contract End Date if termination is for any other reason.

Paragraphs 7 through 14 shall survive termination of this Agreement.

Governing State. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its own or other conflict of law principles. The parties shall use good faith and all reasonable efforts to resolve disputes arising from or relating to this Agreement by negotiating with each other first. Any disputes unresolved by good faith resolution attempts may then be brought in a court of competent jurisdiction in Fairfax County, Virginia.

Entire Agreement. This Agreement and the additional terms referenced herein represents the entire final Agreement between the parties and supersedes all prior Agreements relating to the use of the Services, whether written or oral, unless otherwise expressly permitted in this Agreement. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void. In the event of any conflict between these Terms of Service and any other terms referenced herein, these Terms of Service shall govern. Any changes requested to our Agreement must be made in a written and signed addendum, which shall be incorporate by reference upon acceptance by Zarca.

Changes to Terms. Zarca may require changes this Agreement to reflect changes in applicable law or updates to the Services, and to account for new Services or functionality. Zarca will provide written notice of any material changes to our Agreement, to permit you a reasonable chance to review and consent to the same. Changes will be effective no sooner than the day written notice is provided to the End User. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms. Waiver. The failure by Zarca to enforce any right or provision of the Agreement shall not constitute a waiver of that provision or any other provision of the Agreement.

Force Majeure. The parties understand that there may be an occurrence of an event or effect that cannot be Zarca Interactive Terms of Service v11A 22-2-18 reasonably anticipated or controlled, which even by the exercise of reasonable diligence cannot prevent nonperformance. These occurrences and events include, but are not limited to: acts of God; acts of war; acts of public enemies; strikes; fires; explosions; outages; general Internet brown-outs or black-outs or shortage of bandwidth; hacking; actions of the elements; or other similar causes beyond the control of End User or Zarca in the performance of this Agreement. Upon the occurrence of such event or effect, the parties shall agree to excuse performance under this Agreement and not hold the other liable for the delay in or failure of performance under this Agreement. Any such delay in or failure of performance shall not constitute default or give rise to any liability for damages.

Transfer of Rights. End User shall not assign or otherwise transfer the rights under this Agreement by operation of law or otherwise, without Zarca‘s prior written consent. Any entity that acquires merges with, or otherwise combines in any manner with End User shall not acquire any rights to the Services under this Agreement, without Zarca‘s prior written consent. Zarca reserves the right to assign this Agreement and the Services provided herein.

Severability. If any provision of the Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.

Recovery. In the event Zarca must initiate mediation, arbitration, litigation, or otherwise become a party to any other action at law or other proceeding against the End User or related to End User to enforce any of the terms of this Agreement, or by reason of any breach or default, Zarca shall in any such action or proceeding be entitled to recover from End User all costs and reasonable attorneys’ fees it incurred.