1 Scope of Services
These General Terms and Conditions ("GTC") apply to all contracts between ZONTAL INC. ("ZONTAL") and the client ("Client") for software creation, software licensing, software maintenance, and IT services. Deviating terms and conditions of the Client shall not be recognized unless ZONTAL expressly agrees to their validity in writing.
These GTC also apply to all future business relations between ZONTAL and the Client, even if they are not separately agreed upon again. ZONTAL reserves the right to amend these GTC at any time; changes will be communicated in writing. The Client's continued engagement of ZONTAL's services after such notification constitutes acceptance of the amended GTC.
2 Services Description & Amendments
A contract between ZONTAL and the Client materializes upon written confirmation by ZONTAL or upon the first act of performance by ZONTAL, whichever occurs first. Proposals and cost estimates by ZONTAL are non-binding unless expressly designated as binding.
Delivery periods and dates are non-binding unless expressly agreed upon in writing as fixed deadlines. Partial deliveries and services are permissible unless objectively unreasonable for the Client. ZONTAL may subcontract the performance of services to qualified third parties at its sole discretion.
Any amendments, additions, or changes to the scope of services require a written change order signed by both parties. ZONTAL shall assess the impact of such changes on timelines, costs, and deliverables. Any additional costs arising from change orders shall be borne by the Client.
3 Client's Duty to Cooperate
The Client must support ZONTAL in the performance of the contracted services and create all prerequisites required for the proper execution of the contract. In particular, the Client shall provide all necessary information, data, materials, and access to systems in a timely manner and at no charge.
The Client shall designate a competent contact person who is authorized to make decisions pertaining to the project. Any delays caused by the Client's failure to fulfill its cooperation duties shall extend delivery timelines accordingly. ZONTAL shall not be liable for any delays or deficiencies attributable to the Client's failure to cooperate.
Upon delivery of a work product, the Client has a checking period of two (2) weeks for acceptance. If the Client does not raise specific written objections detailing defects within this period, the work product shall be deemed accepted. Acceptance shall also be deemed granted if the Client puts the delivered work product into productive use.
4 Payment
All fees are due upon receipt of invoice and are payable net within fourteen (14) days of the invoice date. All prices are exclusive of applicable value-added tax (VAT) and other taxes, duties, or levies, which shall be charged in addition at the statutory rate prevailing at the time of invoicing.
A daily rate corresponds to eight (8) working hours on regular business days (Monday through Friday, excluding public holidays). Services rendered outside of regular business hours, on weekends, or on public holidays shall be charged at 150% of the applicable hourly rate unless otherwise agreed in writing.
In the event of late payment, ZONTAL shall be entitled to charge interest on the outstanding amount at a rate of 1.5% per month or the maximum rate permissible by law, whichever is lower, calculated from the due date until full payment. All costs and expenses incurred by ZONTAL in connection with the collection of overdue payments, including reasonable attorney's fees, shall be borne by the Client.
5 Retention of Title
ZONTAL retains title to all deliverables, including but not limited to software, documentation, and other materials, until all liabilities owed by the Client to ZONTAL have been fully satisfied. Prior to the transfer of title, the Client shall not pledge, assign, or otherwise encumber the deliverables.
If the Client is in breach of contract, in particular in the event of default of payment, ZONTAL shall be entitled to reclaim and take possession of the deliverables. The reclaiming of deliverables by ZONTAL shall constitute a withdrawal from the contract only if ZONTAL expressly declares so in writing.
6 Warranty
ZONTAL warrants that the software shall meet the intended task requirements when used in accordance with the terms of the contract and the accompanying documentation. The warranty period is twelve (12) months from the date of acceptance.
The warranty is limited to the rectification of defects by ZONTAL at its own discretion, either by repair or replacement. ZONTAL shall be given reasonable opportunity to remedy any defect. The Client must provide a written notification of defects with a detailed description of the error and the circumstances under which it occurred.
The warranty does not apply to defects arising from unauthorized modifications, improper use, use in an environment not meeting the specified requirements, or interference by the Client or third parties not authorized by ZONTAL. The warranty is further excluded for software that is based on specifications or materials provided by the Client, to the extent the defect is attributable to such specifications or materials.
7 Right of Use & Intellectual Property
Upon full payment of all agreed-upon fees, ZONTAL grants the Client a simple, non-exclusive, non-transferable license to use the delivered software for the agreed-upon purpose. The right of use is limited to the use on the systems and for the number of users specified in the contract.
Source code shall be provided to the Client only if expressly agreed upon in writing. All intellectual property rights, including but not limited to copyrights, patents, trademarks, and trade secrets, in and to the software and all related documentation shall remain with ZONTAL.
The Client shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software, except to the extent expressly permitted by applicable mandatory law. The Client shall not sublicense, rent, lease, or lend the software to any third party without the prior written consent of ZONTAL.
8 Third Party Rights
In the event that a third party asserts intellectual property claims against the Client in connection with the software provided by ZONTAL, ZONTAL may, at its sole discretion, modify or replace the licensed material so that the infringement is remedied while maintaining the essential functionality agreed upon in the contract.
The Client shall promptly notify ZONTAL of any such third-party claims and provide ZONTAL with reasonable assistance in the defense thereof. ZONTAL shall have the right to control the defense and settlement of such claims at its own expense.
9 Confidentiality & References
Each party agrees to treat all confidential information received from the other party as strictly confidential and shall not disclose such information to any third party without the prior written consent of the disclosing party. This obligation of confidentiality shall survive the termination or expiration of the contract and shall remain in force indefinitely.
Confidential information includes, without limitation, all business information, technical data, trade secrets, know-how, software, product plans, customer data, financial information, and any other information that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
The obligation of confidentiality does not apply to information that is or becomes publicly available through no fault of the receiving party, was already known to the receiving party prior to disclosure, is independently developed by the receiving party without use of confidential information, or is required to be disclosed by law or court order.
10 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZONTAL DISCLAIMS ALL LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND WHETHER OR NOT ZONTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL ZONTAL'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE CLIENT TO ZONTAL UNDER THE APPLICABLE CONTRACT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
The limitations of liability set forth herein shall not apply to damages resulting from willful misconduct or gross negligence by ZONTAL, or to any liability that cannot be limited or excluded under applicable mandatory law.
11 Expenses
All expenses incurred by ZONTAL during the performance of the contracted services, including but not limited to travel, accommodation, and subsistence expenses, shall be reimbursed by the Client upon presentation of appropriate documentation. Expenses in days shall be calculated on the basis of eight (8) working hours per day.
Travel time to and from the Client's premises shall be charged at the applicable hourly rate unless otherwise agreed. ZONTAL shall endeavor to keep expenses reasonable and shall obtain the Client's prior approval for any individual expense exceeding pre-agreed thresholds.
12 Personal Guarantee
The individual executing this agreement on behalf of the Client personally guarantees payment for all services rendered by ZONTAL pursuant to this agreement. This personal guarantee shall be a continuing guarantee covering all amounts due under the contract and any supplements or amendments thereto.
13 Indemnification
The Client shall indemnify, defend, and hold harmless ZONTAL, its officers, directors, employees, agents, and affiliates from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorney's fees) arising out of or relating to the Client's unauthorized acts, breach of this agreement, or misuse of the software or services provided by ZONTAL.
14 Non-Circumvention
The Client shall not, directly or indirectly, attempt to bypass, circumvent, or otherwise avoid the contractual relationship with ZONTAL in order to gain any benefit, advantage, or access to ZONTAL's business contacts, suppliers, subcontractors, or other proprietary business relationships. This non-circumvention obligation shall survive the termination of the contract for a period of two (2) years.
15 Covenant Not to Compete
During the term of the contract and for a period of one (1) year thereafter, the Client shall not, directly or indirectly, solicit, recruit, hire, or otherwise engage any employee, contractor, or personnel of ZONTAL who has been involved in the performance of services under this agreement, without the prior written consent of ZONTAL.
In the event of a breach of this provision, the Client shall pay ZONTAL liquidated damages equal to the annual compensation of the affected individual, as such amount represents a reasonable estimate of the damages that ZONTAL would incur and not a penalty.
16 Termination
ZONTAL may terminate this agreement with immediate effect by written notice in the event that the Client fails to make payment of any amount due within thirty (30) days of the due date, commits a material breach of any term of this agreement and fails to remedy such breach within fifteen (15) days of receiving written notice specifying the breach, or becomes insolvent, enters into liquidation, or has a receiver appointed over its assets.
Upon termination, the Client shall immediately pay all outstanding amounts owed to ZONTAL and shall return or destroy, at ZONTAL's direction, all confidential information and deliverables in its possession. The provisions of this agreement that by their nature are intended to survive termination (including, without limitation, sections on confidentiality, limitation of liability, indemnification, and intellectual property) shall continue in full force and effect.
17 Mediation and Arbitration
Any dispute, controversy, or claim arising out of or relating to this agreement shall first be submitted to mediation in accordance with the mediation rules of the American Arbitration Association. The mediation shall take place in the county of the principal office of ZONTAL.
If the dispute cannot be resolved through mediation within sixty (60) days of the initiation of the mediation proceedings, the dispute shall be finally resolved by binding arbitration conducted in accordance with the rules of the American Arbitration Association. The arbitration shall take place in the county of the principal office of ZONTAL. The decision of the arbitrator shall be final and binding upon both parties and may be entered as a judgment in any court of competent jurisdiction.
18 Entire Agreement
This agreement, together with all exhibits, schedules, and amendments executed by both parties, constitutes the entire agreement between ZONTAL and the Client concerning the subject matter hereof. It supersedes all prior negotiations, representations, warranties, commitments, offers, contracts, and understandings, whether oral or written, relating to such subject matter.
19 Modifications
No modification, amendment, or supplement to this agreement shall be valid or binding unless made in writing and duly signed by an authorized representative of ZONTAL. Oral agreements, representations, or modifications shall have no legal effect whatsoever.
20 Assignment
The Client may not assign, transfer, or delegate any of its rights or obligations under this agreement without the prior written approval of ZONTAL. Any attempted assignment without such consent shall be void. ZONTAL may freely assign its rights and obligations under this agreement to any affiliate or successor entity.
21 Severability
If any provision of this agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall negotiate in good faith to replace the invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
22 Venue and Jurisdiction
The exclusive venue and jurisdiction for all disputes arising out of or in connection with this agreement shall be the courts located in the county of the principal office of ZONTAL. The parties consent to the personal jurisdiction of such courts and waive any objection to venue or jurisdiction, including on the grounds of forum non conveniens.
23 No-Waivers
The failure of ZONTAL to exercise or enforce any right or provision of this agreement shall not constitute a waiver of such right or provision. No waiver of any breach of this agreement shall be deemed a waiver of any subsequent or prior breach. Any waiver must be in writing and signed by an authorized representative of ZONTAL to be effective.
24 Governing Law
This agreement shall be governed by and construed in accordance with the laws of the State of Utah, United States of America, without regard to its conflict-of-law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this agreement.
25 Data Protection
ZONTAL processes personal data in accordance with applicable data protection laws. For detailed information on how ZONTAL collects, processes, and protects personal data, please refer to our Data Privacy Policy.
The Client shall comply with all applicable data protection laws in connection with any personal data it provides to ZONTAL or that is processed by ZONTAL on the Client's behalf. Where ZONTAL processes personal data on behalf of the Client, the parties shall enter into a separate data processing agreement as required by applicable law.