Upon Zelo.tv issuing a Receipt in response to Your Application, these terms and conditions form a legally binding agreement between You and Zelo.tv.
This agreement commences on the date that Zelo.tv issues the Receipt and continues indefinitely until terminated in accordance with this agreement.
PROVISION OF SERVICES
Subject to the other provisions of this agreement, Zelo.tv must perform the Services for You during the Term.
To the extent permitted by law, the Services are not provided on the basis that they will be continuous or uninterrupted. However the Service Level Agreement applies to the provision of the Services. The Service Level Agreement forms part of this agreement.
4.1 Billing and payment Zelo.tv will bill You, and You must pay the Fees to Zelo.tv, in accordance with schedule 3.
4.2 Interest If You do not make a payment when due, then (without limiting Zelo.tv’s rights of termination or suspension under this agreement) the amount unpaid will bear interest at 2% per month (or the maximum rate permitted by law if it is less than 2%), calculated daily and compounding monthly.
Zelo.tv may from time to time amend this agreement (including the Pricing Sheet) in any way by notice to You. Any such amendment will not take effect earlier than 30 days after the date on which Zelo.tvsends the notice, except where the amendment reasonably reflects a change in the terms and condition of supply imposed on Zelo.tv by a Supplier that takes effect before the end of that 30 day period.
YOUR PERFORMANCE OBLIGATIONS
6.1 Customer Operational Responsibilities You must comply with the Customer Operational Responsibilities.
6.2 Indemnity To the maximum extent permitted by law, You hereby indemnify and must keep indemnified Zelo.tv and its Representatives against all Losses they incur as a result of, or in relation to:
(a) the use of the Services by You or (directly or indirectly) by any End User;
(b) any negligence of You or any End User in relation to use of the Services, or any breach of this Agreement by You; or
(c) any claim by You against any Supplier or claim by any End User against Zelo.tv or any Supplier.
This indemnity may be enforced by Zelo.tv before and without incurring any expense or making any payment to any person. To the extent that this clause purports to confer a right on Representatives of Zelo.tv, Zelo.tv holds those rights on trust for those Representatives.
TERMINATION AND SUSPENSION
7.1 Termination without cause Either party may, in its discretion, terminate:
(a) this agreement as a whole; or
(b) the provision of any of the Services (provided that the remaining Services comprise a normal standalone offering of Zelo.tv at that time),
at any time by notice to the other with effect no earlier than the end of the current Billing Period or, only in the case of termination with effect during any Trial Period and if the Fair Use Limit is exceeded, Zelo.tv in its absolute discretion may terminate or suspend this agreement immediately and without notice, otherwise not less than 24 hours notice to the other.
7.2 Termination for cause Either party may terminate this agreement with immediate effect by notice to the other party if:
(a) the other party defaults in the due and punctual payment of any amount payable under this agreement, and has failed to pay the amount after having been given 7 days notice requiring it to do so (and any such failure will be taken to go to the essence of this agreement);
(b) the other party is subject to an Insolvency Event; or
(c) the other party commits a breach of this agreement (other than failure to pay or comply with the Customer Operational Responsibilities) and (only in the case where it is a breach capable of remedy) that breach is not remedied within 14 days of a notice to the party in breach specifying the breach and requiring it to be remedied.
Zelo.tv may terminate this agreement immediately by notice to You if:
(a) You breach the Customer Operational Responsibilities;
(b) in the opinion of Zelo.tv any information in the Application or standing credit card authorisation is inaccurate, misleading or incomplete; or
(c) the relevant credit card, or standing credit card authorisation, ceases to be valid or expires before You provide a replacement standing credit card authorisation that is acceptable to Zelo.tv.
7.3 Suspension Without limiting any other rights of Zelo.tv under this clause 7, if at any time Zelo.tv becomes entitled to terminate this agreement under clause 7.2, then Zelo.tv may suspend provision of all or some of the Services until such time (if any) as the entitlement to terminate ceases, or Zelo.tv terminates this agreement pursuant to this clause 7. Zelo.tv will notify You of the suspension of the relevant Services, which may be with immediate effect. Fees continue to be payable in respect of any period of suspension.
7.4 Suspension for maintenance etc Zelo.tv may suspend provision of all or part of the Services from time to time for planned maintenance or due to unexpected interruption.
EFFECT OF EXPIRY OR TERMINATION
8.1 Effect of termination Subject to clause 8.2, on expiry or termination of this agreement:
(a) You must pay Zelo.tv all Fees due to Zelo.tv for Services provided prior to the effective termination of this agreement, plus corresponding Fees for any additional assistance provided by Zelo.tv at Your request;
(b) Fees that You have paid in advance are not refundable, except in the case of termination by you for cause under clause 7.2, in which case a pro rata refund will apply;
(c) both parties are taken to be discharged from any further obligations under this agreement; and
(d) either party may pursue any additional or alternative remedy provided by law or in equity.
8.2 Transition out Upon the termination of this agreement:
(a) the Uploaded Content will cease to be available to You and End Users;
(b) links provided by Zelo.tv for the Uploaded Content will cease to function properly; and
(c) You will lose access to the Website (including all reporting functions).
It is Your responsibility to arrange any alternative to the Services (including the above functionality) and Zelo.tv has no obligation to assist You in doing so, either before or after the termination of this agreement.
8.3 Continuing provisions Clauses 4, 6.2, 7, 8, 10, 11, 12, 13 and 14 remain operative and in full force and effect after the expiry or termination of this agreement.
9.1 Party not liable Where a party is required under this agreement to perform an obligation or do any act or thing by a designated time or date (except an obligation to make a payment) (Obligation), the party is not liable for any delay in performing, or failing to perform, an Obligation if the delay or failure arises from Force Majeure and that party has complied with this clause.
9.2 Notice of Force Majeure A party who claims Force Majeure must:
(a) give the other party prompt notice of the Force Majeure with reasonably full particulars and an estimate of the extent and duration of its delay or inability to perform; and
(b) use all possible diligence to remove the Force Majeure as quickly as practical.
9.3 Termination in case of Force Majeure If the delay continues beyond 10 Business Days after the notice given under clause 9.2, then either party may terminate this agreement by giving 5 Business Days prior written notice to the other.
WARRANTIES AND LIABILITY
10.1 Exclusion of other terms To the extent permitted by law, and except as expressly provided in this agreement, all terms, conditions, warranties and representations (in each case whether express, implied, statutory or otherwise) relating in any way to the Services or any other goods or services provided in connection with this agreement (Subject Matter), or to this agreement, are excluded.
10.2 Limitation of Statutory Rights To the extent permitted by law, any liability of MetaCDN in connection with the Subject Matter, or this agreement, pursuant to any Statutory Right is, where permitted by law, limited at the option of Zelo.tv to the replacement, repair or resupply of the relevant goods or services or the payment of the cost of same. Despite any other provision of this agreement, no provision of this agreement other than this clause 10.2 limits or excludes any liability of Zelo.tv under a Statutory Right.
10.3 Exclusion of categories of loss All liability of Zelo.tv on any basis (including negligence) is excluded in respect of any indirect or consequential liability or loss suffered or incurred by You, in relation to the Subject Matter or otherwise under or in connection with this agreement, and in any event (including, but not limited to, where amounting to a direct loss) for any lost profits or goodwill or lost or corrupted data. This clause applies only to the extent permitted by law and subject to clause 10.2.
10.4 Maximum amount of liability Without limiting clause 10.2 or 10.3, and only to the extent permitted by law, the maximum total amount which You may recover from Zelo.tv in respect of all Loss (whether in contract, tort, under statute or otherwise) suffered or incurred by You in any calendar year in connection with this agreement or any of the Services is limited to the total amount paid by You to Zelo.tv in that calendar year.
All Intellectual Property in anything provided to You in connection with this agreement will remain the property of Zelo.tv. All Intellectual Property in Uploaded Content will remain the property of You or Your licensors.