Reseller Customer Terms of Service

Previous Version, No Longer in Effect as of October 1, 2015

EFFECTIVE: January 5, 2015

You (“Subscriber,” “You,” “Your” or related terms) are acquiring a subscription to the Service (as defined below) operated by Zendesk from an unrelated third party authorized to sell such subscriptions (“Reseller”) under a separate agreement with Zendesk (“Reseller Agreement”). In addition to any terms and conditions related to Your use of the Service pursuant to any agreement by and between You and the Reseller, these Zendesk Reseller Customer Terms of Service (the “Terms”) contain the terms and conditions that govern Your access to and use of the Service (as defined herein). Zendesk is an express beneficiary of these Terms, and in acquiring a subscription to the Service, You expressly acknowledge and agree that Zendesk shall have the right to enforce these Terms against You and that these Terms constitute the entire agreement and supersede any and all prior agreements between You and Zendesk with regard to Your subscription to the Service or Your access to or use thereof under these Terms and Your agreement between You and the Reseller.

1. DEFINITIONS

When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:

Account:  means all Zendesk accounts or instances created by or on behalf of Subscriber or its Agents within the Service.

Affiliate: means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

Agent:  means an individual authorized to use the Service through Your Account for such Service as an agent and/or administrator as identified through a unique login.

API:  means the application programming interfaces developed and enabled by Zendesk that permits Subscriber to access certain functionality provided by the Service, including without limitation, the Zendesk REST API that enables the interaction with a Zendesk instance automatically through HTTP requests and the Zendesk application development API that enables the integration of a Zendesk instance with other web applications.

Confidential Information:  means all information disclosed by You to Zendesk or by Zendesk to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure.  For purposes of these Terms, Your Data shall be deemed Confidential Information.  Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.

Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.

Documentation:  means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by Zendesk to You, Agents or End-Users through the Site or otherwise.

End-User:  means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using the Service.

Other Services:  means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, Other Services which may be integrated directly into Your Account.

Personal Data:  means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Service:  means the on-demand Zendesk customer service solution and tools provided by Zendesk, including, individually and collectively, Software, the API and any Documentation.  Any new or modified features added to or augmenting or otherwise modifying the Service or other updates, modifications or enhancements to the Service (“Updates”) are also subject to these Terms and Zendesk reserves the right to deploy Updates at any time.

Service Plan(s):  means the service plan(s) and the functionality and services associated therewith  (as detailed on the Site) for which You subscribe with respect to each Agent.

Site:  means www.zendesk.com and other websites that Zendesk operates.

Software:  means software provided by Zendesk (either by download or access through the internet) that allows an Agent or End User to use any functionality in connection with the Service.

Subscription Term:  means the period during which You have agreed to subscribe to the Service with respect to any individual Agent.

Your Data:  means all electronic data, text, messages or other materials submitted to the Service by You, Agents and End-Users in connection with Your use of the Service, including, without limitation, Personal Data.

Zendesk: means Zendesk, Inc., a Delaware corporation or any of its successors or assignees. In these Terms, Zendesk may also be referred to through the use of “We” or “Our.”

Zendesk Group:  means Zendesk, Inc., a Delaware Corporation together with all its Affiliates.

Zendesk Payment Agent:  means Zendesk, provided that if You choose to pay for Services with a credit card or certain other payment instruments in a currency other than the U.S. dollar, Zendesk may designate the Zendesk Payment Agent to be Zendesk International Limited, a corporation organized under the laws of Ireland, Registration No. 519184.

2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE

2.1 During the Subscription Term and subject to compliance by You, Agents and End Users with these Terms, You have the limited right to access and use the Service consistent with the Service Plan(s) that You subscribe to for Your internal business purposes.  You may not use the Service to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Zendesk from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.

2.2  A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by Zendesk, including Secure Socket Layer (SSL) protocol or other protocols accepted by Zendesk, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Zendesk. We assume no responsibility for the reliability or performance of any connections as described in this section.

2.3 In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents and End Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service To Process data on behalf of any third party other than Agents or End Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Zendesk, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages;  (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to otherwise in writing by Zendesk; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (m) try to use, or use the Service in violation of these Terms.

2.4 You are responsible for compliance with the provisions of these Terms by Agents and End Users and for any and all activities that occur under Your Account, as well as for all Your Data.  Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations.  You also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the Service Plan for which You subscribed, access to and use of the Service is restricted to the specified number of individual Agents permitted under Your subscription to the Service.   You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. The foregoing shall not be deemed to limit Your use of Our Multi-Branding and Light Agent features if Your Service Plan includes these features.  You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.

2.5 In addition to Our rights as set forth in Section 7, Zendesk reserves the right, in Zendesk’s reasonable discretion, to temporarily suspend Your access to and use of the Service:  (a) during planned downtime for upgrades and maintenance to the Service (of which Zendesk will use commercially reasonable efforts to notify You in advance both through Our forum page and a notice to Your Account owner and Agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Agents or End Users.  We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific Time zone) and other off-peak hours.

3. DATA PRIVACY AND SECURITY; CONFIDENTIALITY

3.1 Subject to the express permissions of these Terms, You and Zendesk will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care.  Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.  The provisions of this Section 3 shall supersede any non-disclosure agreement by and between You and Zendesk entered prior to these Terms that would purport to address the confidentiality of Your Data and such agreement shall have no further force or effect with respect to Your Data.

3.2 Zendesk will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies), except for certain Other Services that do not support encryption, which You may link to through the Service at Your election.  Our compliance with the provisions of this Section 3.2 shall be deemed compliance with Our obligations to protect Your Data as set forth in Section 3.1.

3.3 You agree that Zendesk and the service providers it utilizes to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests.  Any third party service providers We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations.

The Zendesk Group may also access or disclose information about You, Your Account, Agents or End Users, including Your Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Zendesk Group’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.

3.4 We collect certain information about You, Agents and End Users as well as Your and their respective devices, computers and use of the Service.  We use, disclose, and protect this information as described in Our Privacy Policy, the then-current version of which is available at www.zendesk.com/privacy and is incorporated into the Terms.

3.5 Zendesk is a certified member of the EU and Swiss Harbor Frameworks operated by the U.S. Department of Commerce and enforced by the Federal Trade Commission and adheres to the U.S.-EU and U.S-Swiss Safe Harbor Framework principles with respect to the transfer, processing and security of any Personal Data transferred from the European Economic Area or Switzerland to the United States.

To the extent Zendesk Processes any Personal Data on Your behalf in connection with use of the Service by You, Your Agents and/or End-Users, Zendesk and You hereby agree that You shall be deemed to be the data controller and Zendesk shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive).  By utilizing the Service, You consent, on behalf of You and Your Agents and End-Users (and represent that You have the authority to consent on behalf of Your Agents and End-Users) to the Processing of Your Data, including, without limitation, any Personal Data, within the Zendesk Group and to other authorized service providers pursuant to these Terms and Our Privacy Policy within the European Economic Area, the United States and in other countries and territories.

Your Data is currently hosted by Zendesk or its authorized service partners in data centers located in the United States or the European Economic Area.  If Your principal location is within the European Economic Area or the United States, We will use commercially reasonable efforts to notify You at least thirty (30) days before Our election to host Personal Data provided to Zendesk in connection with use of the Service in data centers located outside the European Economic Area or the United States.  If You are entitled to this notice and do not wish to have Your Personal Data hosted in data centers located in such other country or territory, You may terminate Your Subscription and Your Account with immediate effect upon written notice to Zendesk within thirty (30) days or Your receipt of such notice.  For avoidance of doubt, the foregoing shall not, in any event, be deemed to limit any other manner of Processing of such Personal Data within the Zendesk Group or to authorize service providers whether in the European Economic Area, the United States or elsewhere.

4. DROITS DE PROPRIÉTÉ INTELLECTUELLE

Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”).  The rights granted to You, Agents and End Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the Service and all hardware, Software and other components of or used to provide the Service, including all related Intellectual Property Rights, will remain with and belong exclusively to Zendesk.  Zendesk shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents or End Users.  Zendesk®, and Zendesk’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Zendesk (collectively, “Marks”), and You may only use such Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Zendesk, its services or products.

5. SERVICES TIERS

If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against Zendesk with respect to such Other Services. Zendesk is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services.  You may be required to register for or log into such Other Services on their respective websites.  By enabling any Other Services, You are expressly permitting Zendesk to disclose Your Login as well as Your Data as necessary to facilitate the use or enablement of such Other Service.

6. VOICE FUNCTIONALITY

If Your Service Plan and subscription to the Service allows You to use the Zendesk Voice™ service, You understand and agree that (a) the Service is not intended to support or carry emergency calls to any emergency services such as public safety answering points, (b) Zendesk will not be held liable for any claim, damages or loss (and You hereby waive any and all such claims or causes of action), arising from or relating to Your (or Agents or End Users) inability to use the Service to make such emergency calls, (c) You are solely responsible for Your operation of Zendesk Voice in compliance with all applicable laws in all jurisdictions governing use of the Service by You, Agents and End Users, including but not limited to telephone recording and wiretapping laws, and (d) You will defend, hold harmless and indemnify Zendesk from and against any third party claim arising from any of the foregoing. Zendesk may disable the phone numbers provided to You if unused or substantially underused for sixty (60) days, or if Your subscription to the Service, Account or rights to access and/or use the Service is otherwise suspended, terminated, or cancelled.  Use of Zendesk Voice is subject to the payment of additional fees and charges, including, without limitation, the phone call rates as detailed on the Site.  When enabling Zendesk Voice, You are consenting, on behalf of You and Your Agents and End-Users to the Processing of Your Data (as generated by or necessary for the provision or operation of Zendesk Voice) by the third party service provider we utilize to provide Zendesk Voice.

7. TERMINATION AND SUSPENSION OF SERVICE

7.1 Under the terms and conditions of Zendesk’s agreement with Reseller (the “Reseller Agreement”), Zendesk is entitled to suspend or terminate Your subscription to the Service, Your rights to access and use the Service or Your Account, and remove and discard any of Your Data if: (a) Zendesk is notified by Reseller of Your failure to pay amounts due to Reseller with respect to Your subscription to the Service; or (b) Reseller fails to pay any amounts due Zendesk pursuant to the Reseller Agreement with respect to Your subscription to the Service. You consent to these suspension and termination rights and acknowledge and agree that Zendesk shall have no liability to You of any kind with respect to any such suspension or termination. Your sole recourse with respect to any such suspension or termination shall be against Reseller.

7.2 Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is cancelled.

7.3 Zendesk reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Agents’ or End Users’ rights to access and use the Service, and remove, disable and discard any of Your Data if We believe that You, Agents or End Users have violated these Terms.  This includes the removal or disablement of Your Data in accordance with Our Copyright Infringement Notice and Takedown Policy available at https://www.zendesk.com/company/ippolicy. Unless legally prohibited from doing so, Zendesk will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. Zendesk shall not be liable to You, Agents, End Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service.  Any suspected fraudulent, abusive, or illegal activity by You, Agents or End Users may be referred to law enforcement authorities at Our sole discretion.

8. CREDITS POLICY

8.1 Zendesk may choose to offer credits in regards to some or all of the Service. Credits may be accumulated by You in various ways, including but not limited to, Your redemption of coupons; awarded via promotional campaigns; and referrals. Zendesk reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges to Reseller.  Credits may only be applied to Subscription Charges due for the Service specifically identified by Zendesk when issuing the credit. Credits can only be used by You and are non-transferable.

8.2 To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, these credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.

9. DISCLAIMER OF WARRANTIES

THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND ZENDESK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT ZENDESK DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM ZENDESK OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

10. LIMITATION DE RESPONSABILITÉ

10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL ZENDESK, OR ZENDESK’S AFFILIATES OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY YOU OR SUCH THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER ZENDESK HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, ZENDESK’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE PAYMENTS MADE BY RESELLER TO ZENDESK WITH RESPECT TO YOUR SUBSCRIPTION TO THE SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES CHARGED FOR YOUR SUBSCRIPTION, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF ZENDESK WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. ZENDESK HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.

10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, ZENDESK’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

11. INDEMNISATION

You will indemnify and hold Zendesk harmless against any claim brought by a third party against Zendesk arising from or related to use of the Service by You, Agents or End Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that Zendesk promptly notifies You of the threat or notice of such a claim.

12. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS

12.1 Under the terms of the Reseller Agreement, Your agreement with Reseller with respect to Your subscription to the Service may be assigned to Zendesk. You agree that if the Your agreement with Reseller is assigned to Zendesk, Your continued rights to access and use the Service shall be subject to Zendesk’s then standard Terms of Service as available at www.zendesk.com/terms and You consent to the application of such terms and conditions, including without limitation, the billing and payment provisions contained therein. You agree that following any such assignment, You shall, upon request by Zendesk, provide such information as is required to secure payment for any Subscription Term commencing after such assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Zendesk’s prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the Zendesk Group or in connection with any merger or change of control of Zendesk or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

12.2 You understand and agree that Zendesk may rely on these Terms, as the entire and complete agreement among You and Zendesk with respect to the subject matter hereof, and that these Terms supersede any and all prior agreements between You and Zendesk with regard to the subject matter hereof. You further agree that these Terms shall apply in lieu of the terms or conditions in any purchase order or other order documentation that You or any Entity which You represent provides (all such terms or conditions being null and void), and that, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by any party with respect to the subject matter hereof.  Notwithstanding the foregoing, additional terms may apply to certain features or functionality Zendesk offers through the Service (the “Additional Terms”). In those instances, Zendesk will notify You, directly or via Reseller, of such Additional Terms prior to the activation of these features or functionality and the activation of these features or functionality in Your Account will be considered acceptance of the Additional Terms.  All such Additional Terms will be considered incorporated into these Terms when You or any Agent authorized as an administrator in Your Account activates the feature or functionality.  Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.

12.3  We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Zendesk as Your consent to any such amendment.  Zendesk’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

13. DIVISIBILITÉ

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

14. CONFORMITÉ AUX LOIS SUR L’EXPORTATION ET RESTRICTIONS D’UTILISATION

The Service and other Software or components of the Service which Zendesk may provide or make available to You, Agents or End Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You, Agents and End Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction.  You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Agents or End Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End Users are located.

15. RELATIONS DES PARTIES

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

16. SURVIE DE CERTAINES CLAUSES

Sections 1, 3, 4 and 9-20 shall survive any termination of our agreement with respect to use of the Service by You, Agents or End Users.  Termination of such agreement shall not limit Your or Zendesk’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

17. CONTRACTING PARTY

Payments made, via Reseller, by credit card, debit card or certain other payment instruments are billed and processed by Zendesk if denominated in U.S. dollars and by Zendesk International Ltd. if denominated in a currency other than the U.S. dollar.  To the extent that any such entity billing or processing this transaction (the “Billing Entity”) is not Zendesk, the Billing Entity is acting solely as a billing and processing agent for and on behalf of Zendesk and shall not be construed to be providing the Service. You are contracting with and the Service is provided and delivered by Zendesk.

18. AVIS ET PRÉAVIS

All notices to be provided by Zendesk to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You; or (ii) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to us in writing by Courier or US Mail to the following address:  Zendesk, Inc., Attn:  Legal Department, 1019 Market St., San Francisco, CA  94103 USA.  All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.

19. LOI APPLICABLE

These Terms shall be governed by the laws of the State of California without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County, for the purpose of resolving any dispute relating to the Terms or access to or use of the Service by You, Agents or End Users.

20. CLAUSES POUR LES UTILISATEURS FINAUX FAISANT PARTIE DU GOUVERNEMENT FÉDÉRAL DES ÉTATS-UNIS

If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to You with only those rights as provided under the terms and conditions of these Terms.