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Built By Zendesk Application Agreement

Last updated on October 16, 2018

This Built by Zendesk Application Agreement (“Agreement”) is made between Zendesk, Inc. and its Affiliates, (collectively, “Zendesk”) and You. By accepting this Agreement or by using the Application (as defined below), You represent and acknowledge that You have read, understood, and agree to be bound by this Agreement as it governs Your use of and access to the Application. The Application made available to You pursuant to this Agreement may only be utilized and tested in association with a subscription to a Service provided by Zendesk to You (as those terms are defined in the Master Subscription Agreement available at https://www.zendesk.com/company/customers-partners/#master-subscription-agreement unless there is a separately negotiated agreement between You and Zendesk (the “Master Subscription Agreement”)). Your use of a Service provided by Zendesk shall be governed by the Master Subscription Agreement, excluding the Zendesk Sell Service found at https://getbase.com/ (“Zendesk Sell Service”). Your use of the Zendesk Sell Service will be governed by Zendesk Sell Terms of service (found here: https://getbase.com/terms/) unless there is a separately negotiated agreement between you and Zendesk for the Zendesk Sell Service (“Zendesk Sell Terms”). Your use of the Application shall be governed by this Agreement. By entering into this Agreement, You represent and warrant that You have the authority to bind the owner, and all Agents authorized under the account for the Service (the “Account”) to the Agreement. If the Account is owned, controlled or operated by or on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “You” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree to the terms herein, You must not accept this Agreement or use the integration. Capitalized terms used in this Agreement and not defined herein shall have the meaning set forth in the Master Subscription Agreement.

1. SCOPE OF AGREEMENT

You are being invited by Zendesk to access and use an application developed by Zendesk that utilizes and interacts with the API and a third party service (“Third Party Service”) in connection with Your Account (“Application”). Your use of the Third Party Service will be governed by Your agreement with the Third Party. Zendesk shall retain sole and absolute discretion as to whether the Application will be made available to You. You are not required to utilize or enable the Application, but if You elect to do so, Your use of and access to the Application shall be subject to the terms of this Agreement. Zendesk may charge for use and access to the Application or may provide the Application for no charge. Zendesk reserves the right to start charging or revise fee amounts at any time, at its sole discretion, under this Agreement or after the Application is incorporated into the Service. You acknowledge that Your use of the Application is governed by this Agreement and that the Master Subscription Agreement (including any terms related to Deployed Associated Services) and the Zendesk Sell Terms do not apply to the Application.

2. NON-DISCLOSURE

2.1 You acknowledge and agree that in permitting access to and use of the Application, Zendesk will be disclosing to You certain confidential, proprietary and/or trade secret information related to the Application or Zendesk (the “Confidential Information”). Such Confidential Information shall include, without limitation, any know how, trade secrets, computer programs, source code, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans, or reports made available to You. 2.2 You agree that You will not, without the express prior written consent of Zendesk, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (i) is or becomes generally available to the public through any means other than as a result of any act or omission by You; (ii) is rightfully received by You from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (iii) is independently developed by You without any reliance on any Confidential Information. 2.3 At the termination of this Agreement or at any time by request of Zendesk, You will return all Confidential Information in Your possession to Zendesk. You also agree that You will not duplicate, translate, modify, copy, print, disassemble, decompile or otherwise tamper with the Application or any Confidential Information.

3. RIGHTS TO ACCESS AND USE

You acknowledge that You shall have only a limited, nonexclusive, nontransferable, revocable, license to access and use the Application in connection with an Account that You control to test its functionality and provide Feedback (as defined below) to Zendesk as requested. Your license to access and use the Application may be revoked at any time at the sole discretion of Zendesk.

4. FEEDBACK

You may provide Zendesk with suggestions, recommendations and other feedback as to the usefulness and functionality of the Application (“Feedback”). Zendesk shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Application, Service, or otherwise use, any suggestions, enhancement requests, recommendations or other Feedback Zendesk receives from You, Agents or End Users.

5. TERMINATION

Either party may terminate this Agreement upon written notice to the other party at any time on ten (10) days written notice (email sufficing). If not earlier terminated, Your obligations and rights pursuant to Section 3 shall terminate upon termination of this Agreement; provided that the foregoing shall not limit Zendesk’s rights pursuant to Section 3 as related to any Feedback provided before or after such termination. Sections 2, 5, 6, 7, 8, 9, 10, 11, 12 and 13 and all obligations thereunder, shall survive any termination of this Agreement.

6. INTELLECTUAL PROPERTY RIGHTS

Zendesk maintains all rights, title and interest in and to all its 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 to access and use the Application under this Agreement do not convey any additional rights in the Application, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Application as expressly herein, all rights, title and interest in and to the Application and all hardware, software and other components of or used to provide the Application, including all related Intellectual Property Rights, will remain with and belong exclusively to Zendesk.

7. ABSENCE OF WARRANTIES; ASSUMPTION OF RISK.

7.1 The Application may contain defects which may be material and are not expected to operate at the level of performance or compatibility of a final product offering. The Application may not operate correctly and may be substantially modified or withdrawn at any time. Access to and use of the Application by You is entirely at Your own risk. IN NO EVENT SHALL ZENDESK BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE APPLICATION, EVEN IF ZENDESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE INTEGRATION. 7.2 ZENDESK MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION AND THE SECURITY OF SERVICE DATA USED IN THE APPLICATION. ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ZENDESK EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN THE APPLICATION AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY ZENDESK OR ITS AFFILIATES UNDER THE MASTER SUBSCRIPTION AGREEMENT WITH RESPECT TO THE SERVICE AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICE.

8. INDEMNITY

You agree to indemnify and hold Zendesk and its affiliates harmless from any losses (including attorneys fees) that result from any claims by You or any third party related to Your access to and use of the Application, the Third Party Service, any act or omission by You or any Agent in violation of this Agreement or any claims by a third party regarding use and disclosure of Personal Data.

9. SERVICE DATA

You hereby grant Zendesk the right to access, transmit, use and process Service Data, which may include the Personal Data of Your Agents and End-Users, as needed to and as applicable, provide the Service and Application. This may include the transfer to other systems and services and necessary to perform the Application. Use of the Third Party Service will be subject to the terms of service agreed to between You and the Third Party for use of the Third Party Service. Zendesk shall have no control over or liability resulting from Your use of the Third Party Service or the data transferred to the Third Party. You hereby consent to the transfer, sharing and/or processing of Service Data, which may contain the Personal Data of Your Agents and End-Users, to the Third Party. Additionally, You have obtained the consent of Your End-Users for the same. Any Service Data in the Application is subject to this Agreement and is not governed by the Master Subscription Agreement or Zendesk Sell Terms (including any terms applicable to Deployed Associated Services such as terms or policies related to data retention or deletion or regional data hosting).

10. NOTICE

All notices to be provided by Zendesk to You under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You on any Form; 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.

11. GOVERNING LAW

This Agreement is to be governed by, construed and enforced according to the laws of the jurisdiction agreed to in the Master Subscription Agreement, regardless of conflict of laws principles. The parties expressly agree to submit to the exclusive personal jurisdiction of the venue agreed to in the Master Subscription Agreement for the purpose of resolving any dispute relating to this Agreement.

12. NO ASSIGNMENT

You may not assign this Agreement without the prior written consent of Zendesk. Subject to the foregoing, Agreement shall be binding upon the parties and their respective administrators, successors and assigns.

13. WAIVER; SEVERABILITY

Failure of Zendesk to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.

14. ENTIRE AGREEMENT

This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. Zendesk may amend this Agreement from time to time in which case the revised Agreement will supersede prior versions. Continued use of the Application following the modification of the Agreement may be relied upon by Zendesk as Your agreement to the modifications.

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