Last Updated: January 12, 2021
1 ACCEPTANCE OF TERMS
1.1 Zive, Inc. (“Zive” or “we”) provides its Service (as defined below) to you through its website located at https://www.kiwiforgmail.com/business (the “Site”) and through its applications, technologies, and related services (“Software”, and collectively, such Software and the Site, including any updated or new features, functionality, and technologies, the “Service”). All access and use of the Service is subject to the terms and conditions contained in these Terms of Service (as amended from time to time, these “Terms of Service”). By accessing, browsing, or otherwise using the Site, Software, or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not accept the terms and conditions of these Terms of Service, you will not access, browse, or otherwise use the Service.
1.2 We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on the Site and will indicate at the top of this page the date these Terms of Service were last revised. You may read a current, effective copy of these Terms of Service by visiting the “Terms of Service” link on the Site and under the Help section of our software. We will also notify you of any material changes, either through the Service user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. If you do not agree to abide by these or any future Terms of Service, you will not access, browse, or use (or continue to access, browse, or use) the Service.
1.3 As part of the registration process, you will identify your Google username and verify with your Google password to create and authenticate into your account with Zive. You may use the usernames (emails) of others within your Google account in order to create standard users to have access to the application.
2 DESCRIPTION OF SERVICE
The “Service” includes (a) the Site, (b) Zive’s Kiwi for G Suite product and (c) all related software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to these Terms of Service.
3 GENERAL CONDITIONS/ ACCESS AND USE OF THE SERVICE
3.1 Subject to the terms and conditions of these Terms of Service, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Zive. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Zive provides you or publishes in connection with the Service, and you shall promptly notify Zive if you learn of a security breach related to the Service.
3.3 You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter, “post(ing)”) in connection with or relating to the Service (“User Content”).
3.4 You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. You agree to immediately notify Zive of any unauthorized use of your password(s) or account(s) or any other breach of security. Zive reserves the right to access your account in order to respond to your requests for technical support. By posting User Content on or through the Service, you hereby do and shall grant Zive a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform User Content in connection with the Service. Zive has the right, but not the obligation, to monitor the Service, Content, or User Content. You further agree that Zive may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
3.5 You understand that the operation of the Service, including User Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Zive’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of User Content. Zive will have no liability to you for any unauthorized access or use of any of User Content, or any corruption, deletion, destruction or loss of any of User Content.
3.6 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Zive’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
3.7 The failure of Zive to exercise or enforce any right or provision of these Terms of Service shall not be a waiver of that right. You acknowledge that these Terms of Service are a contract between you and Zive, even though it is electronic and is not physically signed by you and Zive, and it governs your use of the Service.
3.8 Zive reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Zive’s website and in other communication with existing or potential Zive customers. To decline Zive this right you need to email firstname.lastname@example.org stating that you do not wish to be used as a reference.
3.9 Subject to the terms hereof, Zive may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
4.2 If you dispute any charges you must let Zive know within thirty (30) days after the date that Zive charges you. We reserve the right to change Zive’s prices. If Zive does change prices, Zive will provide notice of the change on the Site or in email to you, at Zive’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Zive may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Zive thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Zive’s net income.
5 EVALUATION PERIOD
If you are permitted by Zive to download and use the Software (defined below) on an evaluation or trial basis (the “Evaluation Software”), then you may use the Evaluation Software for the period of time presented in the evaluation offer made to you, beginning on the date Zive provides you with credentials to download and use the Evaluation Software, unless otherwise specified by Zive (the “Evaluation Period”). Zive may specify an alternative duration for the Evaluation Period by providing written notice to you or by other reasonable means, including via the Site or e-mail. Notwithstanding any other provision of this Terms of Service, Zive provides the Evaluation Software (a) free of charge and without support and (b) “AS IS” without indemnification or warranty of any kind. Certain features or services may not be available for the Evaluation Software. Continued use of the Software after the Evaluation Period requires that you (i) subscribe to the Software through Registration and (ii) submit the applicable payment. Upon expiration of the Evaluation Period, you will not have access to the Evaluation Software.
6 THIRD PARTY DISTRIBUTION CHANNELS
6.1 Zive offers Software applications that may be made available through the Mac Store, Windows App Store, or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
6.2 With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
- Zive and you acknowledge that these Terms of Service are concluded between Zive and you only, and not with Apple Inc. (“Apple”), and that as between Zive and Apple, Zive, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Zive’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Zive and you acknowledge that Zive, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Zive and Apple, Zive, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Zive and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Zive as follows: email@example.com.
7 REPRESENTATIONS AND WARRANTIES
You represent and warrant to Zive that (i) you have full power and authority to enter into these Terms of Service; (ii) you own all User Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Zive to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) User Content and other activities in connection with the Service, and Zive’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does User Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
You may terminate your subscription at any time by logging into your account and clicking “cancel”, or by contacting us at firstname.lastname@example.org. Subject to earlier termination as provided below, Zive may terminate your account and these Terms of Service at any time by providing thirty (30) days prior notice to the administrative email address associated with your account. In addition to any other remedies we may have, Zive may also terminate these Terms of Service upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment), if you breach any of the terms or conditions of these Terms of Service. Zive reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of User Content on the Service (if any) may be permanently deleted by Zive upon any termination of your account in its sole discretion. All accrued rights to payment and the terms of Sections 4-15 shall survive termination of these Terms of Service.
9 DISCLAIMER OF WARRANTIES
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Zive or by third-party providers, or because of other causes beyond our reasonable control, but Zive shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES, TERMS OR CONDITIONS OF ANY KIND, AND ZIVE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, TERMS OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE THAT ZIVE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM ZIVE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
10 LIMITATION OF LIABILITY
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL ZIVE BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR ANY DIRECT OR INDIRECT LOST PROFITS, LOST SALES OR BUSINESS, LOST OR CORRUPTED DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE to YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED (USD100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS OF SERVICE BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS OF SERVICE.
10.2 SOME STATES 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 STATES, ZIVE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless Zive, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Zive Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Zive Party from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Zive Party or to the extent that you are not required by applicable law to indemnify or hold harmless any Zive Party. Zive will provide notice to you of any such claim, suit, or proceeding. Zive reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Zive’s defense of such matter. You may not settle or compromise any claim against the Zive Parties without Zive’s written consent. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or releasing party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
12 U.S. GOVERNMENT MATTERS
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Zive on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms of Service and will be prohibited except to the extent expressly permitted by the terms of these Terms of Service.
You may not assign these Terms of Service without the prior written consent of Zive, but Zive may assign or transfer these Terms of Service, in whole or in part, without restriction.
If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. Both parties agree that these Terms of Service is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms of Service, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind Zive in any respect whatsoever. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
15 GOVERNING LAW
These Terms of Service shall be governed by the laws of the State of New York without regard to the principles of conflicts of law. Unless otherwise elected by Zive in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of New York for the purpose of resolving any dispute relating to your access to or use of the Service.
Please visit https://www.kiwiforgmail.com/privacy-policy.php to understand how Zive collects and uses personal information.