general terms of service

You (“customer”, “you” or “your”) are entering into a business relationship with zkipster AG with registered office at Grossmünsterplatz 8, 8001 Zürich, Switzerland (company number CHE-345.444.895) (“zkipster” or “we”).

These terms of service and the Data Processing Agreement (as defined below) (together “Agreement”) set out the basis upon which zkipster will provide the Service (as defined below) to you.

In this Agreement: (i) “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with, another entity; and (ii) “User” means any person who is authorized to access or use the Service (as defined below) by customer, including, as the case may be, customer’s Affiliates, and customer’s and customer’s Affiliates’ employees, agents and sub-contractors.

1. Provision of Service

1.1. Application and Website

You agree to use the application, website and/or any subsite of zkipster (zkipster.com) (“Site”) only for lawful purposes. You agree not to take any action that might compromise the security of the Site, render the Site inaccessible to others or otherwise cause damage to the Site, its accessibility or its content. You agree not to add to, subtract from, or otherwise modify the Site or any content, or to attempt to access any content that is not intended for you. You agree not to use the Site in any manner that might interfere with the rights of any third party.

1.2. Service

After opening the Account (as defined below), subscribing for the Service (as defined below), and paying the Service Fee (as defined below) (“Effective Date”), zkipster will provide and make the services as described on the Site (“Service”) available to you in accordance with this Agreement and all applicable laws. You shall have the right to use the Service in accordance with the terms and conditions of this Agreement

In order to use the Service, you have to open an account by using the Site (“Account”). You agree that registration for an Account and therefore the use of the Service is – if not explicitly agreed otherwise – subject to this Agreement, in particular the payment of the Service Fee according to Section 2 below.

You agree that registration for an Account and therefore the use of the Service is – if not explicitly agreed otherwise – subject to this Agreement, in particular the payment of the Service Fee according to Section 2 below.

You acknowledge and agree to a fair use of the Service at all times, in particular (i) that each Account shall have one or more identification(s) (username) which may be used by you and your Users only and you agree not to transfer your identification(s) to any other person or entity other than an Affiliate, as applicable, without the prior written consent of zkipster, and (ii) not to share your identification as described in Section 9 below.

Alteration between Service plans is available. Customers that wish to switch Service plans can ‘upgrade’ current services and subscribe for a new Service plan via the Account interface. zkipster is not providing a cancellation period for any subscription to the Service. Accordingly, your purchase cannot be cancelled once it was paid and will not be refunded if not used. However, if you believe that zkipster has charged you in error, you must contact us immediately and no later than 5 days of such charge. You are fully responsible for managing your subscription and any automated renewal when your current subscription period comes to an end. No refunds will be given for any charges resulting of such automated renewals. zkipster reserves the right to refuse a refund if you are in breach of the terms and conditions under this Agreement.

1.3. Restrictions on Use of Service

All Users of the Service must follow the rules of conduct and acceptable use policy stipulated by this Section 1.3 (“Policy”). If you are in breach of this Policy, we are entitled to suspend your Account immediately and without prior warning which shall have no impact on your obligations according to this Agreement.

zkipster is not responsible for any actions of those who receive emails and/or text messages with your content or based on such content and issued by using the Service. Specifically, consider the following restrictions when using our Service: do not use the Service to send anything to the email or text message recipients that:

constitutes unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate or illegal; or
constitutes unauthorized or unsolicited advertising, junk or bulk message (“spamming”) as defined by applicable law; or
contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of zkipster or any third party; or
puts into your message any material that was not created by you, provided to you for respective use, or that would violate any third party’s rights (including text, photos, graphics, and other content); or
impersonates any person or entity, including any employee or representative of zkipster; or
includes anyone’s identification documents; or
provides for uploads or transfers to any purchased lists, rented lists, or third-party lists of any kind of which you have no right of use; or
does (otherwise) constitute a violation of applicable laws or regulations

2. Data Processing and Security

2.1. Personal Data

In certain circumstances we (as a controller) will process customer’s (or customer’s or customer’s Affiliates’ employees, agents or sub-contractors) contact personal data provided to us to:

a) provide the Service; and

b) process your payment for the Service.

For details of our personal data processing activities please see our Privacy Notice under the following link: https://www.zkipster.com/privacy-policy.

To the extent that zkipster is processing personal data of the customer’s clients, event attendees or invitees or other individuals as a processor, the parties hereby conclude a data processing agreement in the form and content according to https://www.zkipster.com/data-processing-agreement (“Data Processing Agreement”). zkipster will not process any personal data as a processor on customer’s behalf except as described in the Data Processing Agreement. zkipster will comply with all its obligations in the Data Processing Agreement and under the Data Protection Laws (as defined in the Data Processing Agreement) in respect of that processing.

2.2. Monitoring, Information Collection and Data Usage

All actions performed while using the Service and the Site are subject to monitoring, recording and analytical activities (such as developing rating algorithm/rules and predictive analytics or incorporating social networks research) by zkipster. All user sessions, emails and text messages sent may be recorded and logged with the respective Account information, IP addresses and time/day stamps. zkipster will only share personal data (e.g. guest lists, log in information and invite lists etc.) with any third parties within the limits stipulated in this Agreement and in particular the Data Processing Agreement and always subject to your directions. Any collected data will only be used to control the general usage of the Site and the Service and/or to improve the quality of the Site and the Service (e.g. new features).

2.3. Security

By using the Site and the Service, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

3. Fees and Payments

3.1.

By opening an Account, subscribing for the Service, and paying a service fee described on the Site ("Service Fee") you are allowed to use the respective Service for a certain period of time. The default payment method for the Service Fee is a valid credit card (Visa, Mastercard, American Express). For certain Service plans, zkipster may offer payment via wire transfer. In case of payment by credit card, a third-party credit card service provider is handling the payment process. The Service Fee will be charged in either USD (United States Dollars), or any other currency which may be agreed by zkipster, in its sole discretion, depending on the selection you have made, and the billing country associated with your credit card or company registration (for a list of all available currencies please refer to our pricing page on the Site). A variation of the writing “ZKIPSTER” will appear on your credit card statement. At the time of checkout, zkipster will obtain an authorization from the credit card you have provided. Once zkipster receives the credit card authorization, zkipster will grant you access to the Service. Access to the Service will generally be granted after receipt of the Service Fee. In case you have paid by wire transfer, we will check our accounts. You acknowledge and agree that the Service Fee is exclusive any value added taxes (VAT), sales taxes and/or other charges which may be imposed on the Service Fee in any relevant jurisdiction. Any such taxes (VAT), sales taxes and/or other charges, if any, will be added to the invoiced Service Fee.

3.2.

For the avoidance of doubt, the Service Fee and any other sums payable by you to zkipster shall be made free and clear of, and without any deduction for, any of your present or future taxes, levies, charges or withholdings of any nature you may be obligated to pay in any jurisdiction.

3.3.

If you have any questions about payments, charging and Service Fee, please contact us directly at support@zkipster.com. If you dispute any charges on your card without speaking to us first, your Account might be suspended, and all data (including guest lists) may be deleted with immediate effect.

3.4.

If customer fails to make any payment due to zkipster under this Agreement by the due date for payment, then the customer will pay interest on the overdue amount at the rate of 3% per annum. Such interest will accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The customer will pay the interest together with the overdue amount.

4. Term and Termination

4.1.

This Agreement will commence on the Effective Date and, unless earlier terminated as set forth herein, shall continue for a subscription period as described on the Site. After the end of such subscription period, this Agreement shall automatically renew and continue to automatically renew for the same subscription period term unless other options have been chosen on the Site and unless terminated by any party by providing the other party with no less than 30 (thirty) days’ written notice prior to the end of such subscription period term.

4.2.

Without limiting the parties’ other rights or remedies, either party may terminate this Agreement by giving notice to the other party if:

a) the other party commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice to do so; or

b) the other party suffers an insolvency event. An insolvency event shall for the purposes of this clause mean any corporate action, application, order, proceeding or appointment or other step is taken or made by or in respect of a party for any composition, compromise or arrangement with its creditors generally, any restructuring plan, any moratorium, its winding-up (other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation), dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or carry on business or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which that party is incorporated, resident or carries on.

4.3.

Once the status of the Account is inactive following termination or expiry of this Agreement, you do not have access to any of your data, e.g. guest lists. zkipster may permanently delete any inactive Accounts and any thereto related data (incl. guest lists and invite lists) at any time at its sole discretion. zkipster shall have no liability whatsoever to you or any third party due to said deletion of data and any cancellation and/or termination. You understand that, after the termination and deletion of the data in accordance with the aforesaid, none of your data will be recoverable.

4.4.

Termination of this Agreement, however arising, will not affect any of the parties’ rights and remedies that have accrued as at termination. Sections and/or provisions which expressly or by implication survive termination of this Agreement will continue in full force and effect.

5. Intellectual Property Rights

5.1.

All intellectual property rights in or arising out of or in connection with the Site and its content including the brand and the Service are protected by the respective copyright, trademark and other intellectual property laws, and belong to zkipster. You agree and understand that zkipster owns title to and intellectual property rights in the Service and the Site and in all information, writings, images and other works that you use, see, hear or otherwise experience on the Site and/or when using the Service ("zkipster IP"). Unless explicitly provided otherwise by this Agreement, you are not allowed to copy or otherwise use any such content or information belonging to the Service and/or the Site. In the event of your acquiring any rights in the zkipster IP you undertake to assign the same with full title guarantee to zkipster and undertake all things necessary to assign the rights to us.

5.2.

zkipster agrees and understands that you own the title and intellectual property rights in your content and data uploaded to the Service and/or the Site or otherwise provided to zkipster by you or your Users. You licence zkipster to use the same for the purposes of carrying out the Service and this Agreement and in particular for the purposes set out in Section 2.2.

6. Indemnification

6.1.

You shall indemnify zkipster against any liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by zkipster as a result of any claim brought against zkipster or its Affiliates in respect of an email, text message or other transmission sent (or facilitated) by you or your Users using the Site and/or the Service (allegedly) infringing the intellectual property or other rights of any third party.

6.2.

The indemnification obligations according to this Section 6 shall survive termination of this Agreement. Nothing in this Section 6 shall remove or reduce the requirement for a party to mitigate any losses in connection with a third-party claim.

7. Disclaimer of Warranties

ZKIPSTER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE SITE, THE SERVICE OR ANY CONTENT. SAVE AS SET OUT ABOVE AND OTHERWISE STATED IN THIS AGREEMENT, ZKIPSTER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SITE, THE SERVICE, THE CONTENT, AND ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED VIA THE SITE. SAVE AS SET OUT ABOVE AND OTHERWISE STATED IN THIS AGREEMENT, ZKIPSTER DOES NOT WARRANT THAT THE FUNCTIONS PERFORMED BY THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS ON THE SITE OR IN THE SERVICE WILL BE CORRECTED. SAVE AS SET OUT ABOVE AND OTHERWISE STATED IN THIS AGREEMENT, ZKIPSTER DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. SAVE AS SET OUT ABOVE AND OTHERWISE STATED IN THIS AGREEMENT, ZKIPSTER DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE CONTENT, OR THAT ANY ERRORS IN THE CONTENT WILL BE CORRECTED. SAVE AS SET OUT ABOVE AND OTHERWISE STATED IN THIS AGREEMENT, THE SITE, THE SERVICE AND THE CONTENT ARE ONLY PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

8. Limitation of Liability

8.1.

SUBJECT TO THE REMAINDER OF THIS SECTION 8, ZKIPSTER’S TOTAL AGGREGATE LIABILITY IN RESPECT OF ALL CLAIMS OF ANY KIND ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR RESTITUTION, OR FOR BREACH OF STATUTORY DUTY OR MISREPRESENTATION, OR AN INDEMNITY, OR OTHERWISE, SHALL BE LIMITED TO 100% OF THE TOTAL SERVICE FEES PAID BY YOU UNDER THIS AGREEMENT.

8.2.

NOTHING IN THE AGREEMENT SHALL LIMIT OR EXCLUDE THE LIABILITY OF EITHER PARTY FOR:

A) DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE;

B) FRAUD OR FRAUDULENT MISREPRESENTATION;

C) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND/OR

D) ANY OTHER LOSSES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS.

8.3.

ZKIPSTER SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR RESTITUTION, OR FOR BREACH OF STATUTORY DUTY OR MISREPRESENTATION, OR OTHERWISE, FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR ANY DIRECT OR INDIRECT LOSS OF PROFIT OR LOSS OF REPUTATION ARISING IN CONNECTION WITH THIS AGREEMENT.

9. Password Security

If you open an Account and subscribe for the Service that zkipster provides through the Site, you are responsible for maintaining the confidentiality of your identification(s) (username) and password information, and for restricting access to your computer (including any telephone, mobile or tablet devices). You acknowledge and agree to accept responsibility for all activities that occur under your identification and password. Please also refer to Section 1.2 regarding the use of your identification(s).

10. No Ownership Rights

10.1.

zkipster grants you and your Users access to the Service throughout the term of this Agreement. zkipster hereby grants you a non-exclusive licence to access and use the Site and the Service, and to permit such use and access by your Users, in accordance with the terms of this Agreement.

10.2.

Save as set out above, you are granted no ownership rights or exclusive or sole license to any software by this Agreement. You understand and agree not to, directly, or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, remove any notices, labels or advertisement from the Site and the system. You also agree not to modify, translate, or create derivative works based on any aspect of the Site, the Service and the system. You understand that you have no rights to copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Site, the Service and the system or any of its components.

11. Links to Third Party Websites / Linking to this Site

Links on the Site to third party websites or information are provided solely as a convenience to you. If you use these links, you will leave the Site. Such links do not constitute or imply an endorsement, sponsorship, or recommendation by zkipster of the third party, the third-party website, or the information contained therein. zkipster is not responsible for the availability of any such websites. zkipster is not responsible or liable for any such website or the content thereon. If you would like to link to the Site, you must follow the following guidelines: unless specifically authorized by zkipster, you may not connect “deep links” to the Site, i.e., create links to this site that bypass the home page or other parts of the Site, and you may not mirror or frame the home page or any other pages of this Site on any other website or webpage.

12. Confidentiality

12.1.

‍"Confidential Information" means all technical or commercial data, information, know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to one party or such party’s Affiliate(s) ("Receiving Party") by the other party, its Affiliates, employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s or its Affiliates’ business, its products and services which the Receiving Party or its Affiliates obtain(s) under this Agreement or in the course of receiving or providing the Service (as the case may be).

12.2.

Confidential Information shall not include information which:

a) at the time of disclosure is in the public domain;

b) after disclosure becomes part of the public domain otherwise than by breach by a party of the provisions of this Agreement;

c) was already in the possession of the Receiving Party at the time of disclosure;

d) was received by the Receiving Party after disclosure from a third party who was not required to hold it in confidence; or

e) is trivial or obvious.

12.3.

The Receiving Party will keep the received Confidential Information in strict confidence and will use such Confidential Information only for the purposes of performing its obligations or exercising its rights under this Agreement.

12.4.

The Receiving Party may disclose the received Confidential Information only: (a) to those of its Affiliates, employees, agents and subcontractors officers, solicitors, accountants, surveyors, insurers and other professional advisors (together, the "Representatives") who need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, subject to the Receiving Party ensuring that such Representatives comply with the obligations set out in this Section 12; and (b) as required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This Section 12 will survive termination of this Agreement.

13. Entire Agreement / Severability / No Waiver / Assignment

13.1.

These terms and conditions constitute the entire Agreement of the parties with respect to the use of the Site and the Service and supersede any other terms and conditions, including any located on the Site and any customer terms and conditions that might have been distributed or referred to. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement. The Data Processing Agreement forms an integral part of this Agreement. In the event of any conflict between this Agreement and the Data Processing Agreement, this Agreement shall take precedence.

13.2.

If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, it will not impact any other provision of this Agreement, all of which will remain in full force and effect. The invalid or unenforceable provision(s) shall be replaced by such provision(s) the parties would, acting reasonably, have agreed upon had they been aware of the invalidity or non-enforceability of the provision to be replaced.

13.3.

No waiver by either zkipster or you of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The parties shall not assign, subcontract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of their rights and duties under the Agreement, in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, zkipster may assign, subcontract and/or transfer any or all of their rights and duties under the Agreement, in whole or in part, to any of its Affiliates.

14. Notices

14.1.

Notices under this Agreement will be in the form as set out in this Section 14 and sent to a party’s registered office or to the email address set out below.

14.2.

Any notices given to a party under or in connection with this Agreement shall be in writing, (which includes email) and shall be given, and will be deemed received:

by hand: when left at the address of the recipient;
by recorded delivery or commercial courier: at the time of delivery as recorded by the postal service or courier;
where zkipster is giving notice to the customer by email to the primary email address of the account as registered and kept up to date by you within zkipster account settings;
where the customer is giving notice to zkipster to support@zkipster.com on receipt if this occurs on a business day, or otherwise at the start of the next business day following dispatch, provided that notice is sent to the correct email address and no notice of delivery failure is received.

14.3.

This clause does not apply to the service of any proceedings, or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15. Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of customer to make payments to zkipster hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ten (10) days following written notice given by it under this Section 17, either party may thereafter terminate this Agreement upon five (5) days’ written notice.

16. Enforcement / Governing Law / Place of Jurisdiction

16.1.

This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by, and construed in accordance with the law of Switzerland to the exclusion of its conflict of law rules and any international treaties (in particular the United Nations Convention on Contracts for the International Sale of Goods).

16.2.

Each party irrevocably agrees that the courts of the City of Zürich, Switzerland (venue being Zürich 1) will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).