Last Modified: January 27, 2016
2. Access, License and Privacy.
3. Registration Policy and Account Security.
If you create, or are provided with, a user name, password or any other information as part of our security procedures, you agree to treat such information as confidential, and that you will not disclose such information to any other person or entity. You further agree that your account is personal to you and that you will not provide any other person access to this Site or the Services, or any portions of the same, using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
4. Links to Third Party Sites.
5. Intellectual Property Rights; Content; Copyright Infringement Notification Process.
5.2 Your Content. The Site and Services may allow or require
you to post reviews, data, text, pictures, videos, recordings or other
materials and information that will be accessible by visitors to the Site or
users of the Services ("Public Content"), or that will only be
accessible by you or those designated by you ("Private Content")
(Public Content and Private Content, collectively referred to as "Your
Content"). As between you and
Zingity, you remain the sole owner of and solely responsible for Your
Content. Zingity does not claim
ownership of any of Your Content, but by submitting Your Content, you hereby
grant Zingity a nonexclusive, worldwide, royalty-free, fully paid up,
irrevocable, perpetual right and license to link to, reproduce, distribute,
adapt, promote, display, and sublicense Your Content, including without
limitation using Your Content in marketing materials for Zingity. Zingity does not endorse, guarantee, or
assume any responsibility, obligation or liability relating to Your Content,
including without limitation liability for third-party claims against users of
the Site or Services for defamation, libel, slander, infringement, invasion of
privacy, violation of publicity rights, obscenity, pornography, profanity,
fraud or misrepresentation. Zingity reserves
the right to remove any of Your Content at any time, with no obligation to
notify you of the removal and no obligation to retain the removed content. Publication of any of Your Content is at the
sole discretion of Zingity.
5.3 Prohibited Content. While using the Site or Services, you agree that you will not upload, post, email, transmit or otherwise make available any Public Content or Private Content that: (i) is unlawful, harmful, threatening, abusive, harassing, tortious, infringing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or is racially, ethnically or otherwise objectionable; (ii) creates a risk of harm, loss, or damage to any person or property or a risk of physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal; (iii) seeks to harm or exploit minors in any way, including, but not limited to, by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) violates, or encourages any conduct that violates laws or regulations or contains any information or content that is illegal; or (v) infringes any third party’s intellectual property rights, privacy rights, publicity rights, or other personal or proprietary rights or contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.
Transmission of Your Content.
The term "Your Content" also includes registration
information, business and financial information, electronic transmissions and
all other data of any kind contained within emails or otherwise submitted by
you or entered electronically in the course of your use of the Site or
Services. You understand that the technical processing and transmission of Your
Content (including the possible transmission of Your Content outside its
country of origin) may be necessary to your use of the products, services and
content offered on or through the Site or Services and consent to Zingity's
interception and storage of Your Content. You understand that you or Zingity
may be transmitting Your Content over the Internet, and over various networks,
only part of which may be owned and operated by Zingity. You agree that Zingity
is not responsible for any portions of Your Content that are lost, altered,
intercepted or stored without authorization during the transmission of Your
Content across networks not owned and operated by Zingity.
5.6 Copyright Infringement Notification Process. Zingity abides by the Federal Digital Millennium Copyright Act (the "DMCA"). If you believe that any content included on the Site or Services is your proprietary work and has been copied in a way that constitutes an infringement of your copyrights in that work, please immediately notify Zingity of any such copyright or other Intellectual Property Rights infringement. Similarly, if you believe that Your Content has been inappropriately removed, you may send a counter-notification. In either case, your written notice should be sent to our designated agent as follows:
Web Confidence, LLC
Attn: INSERT NAME
Email: INSERT EMAIL
5.6.1 Copyright Infringement Notification. To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. Providing URLs is the best way to help us locate content quickly.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
5.6.2 Counter-Notification. If Your Content has been taken down, you may elect to send us a counter notice. To be effective your counter notice must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
1. A physical or electronic signature of the subscriber.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
6. Disclaimer of Warranties/Limitation of Liability
THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, ZINGITY AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS AND LICENSORS (COLLECTIVELY, THE "ZINGITY PARTIES") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ZINGITY PARTIES DO NOT WARRANT THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR SERVERS THAT MAKE THE SITE AND SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PRODUCT DESCRIPTIONS OR DEPICTIONS, OR OTHER CONTENT OFFERED AS PART OF THE SITE OR SERVICES, ARE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. IF YOU DOWNLOAD ANY CONTENT FROM THE SITE OR SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT THROUGH THE SITE OR SERVICES. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SITE OR SERVICES OR ANY FEATURE OR PART THEREOF AT ANY TIME. THE ZINGITY PARTIES ASSUME NO RESPONSIBILITY FOR THE DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT OR PERSONALIZATION SETTINGS.
YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ZINGITY PARTIES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF A ZINGITY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR USE OR ACCESS OF, OR INABILITY TO USE OR ACCESS, THE SITE OR SERVICES.
IT IS THE PARTIES EXPRESS INTENT THAT ZINGITY NOT BE LIABLE TO YOU FOR ANY MONETARY DAMAGES AND THAT YOUR SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT SHALL BE TERMINATION OF THE AGREEMENT. HOWEVER, IF IT IS DETERMINED BY A COURT OF COMPETENT JURISDICTION THAT SUCH LIMITATIONS OF LIABILITY IS NOT LEGALLY ENFORCEABLE, IN NO EVENT SHALL ZINGITY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF EITHER (1) $50.00 USD OR (2) THE TOTAL YOU PAID DIRECTLY TO ZINGITY IN THE TWELVE MONTHS IMMEDIATELY PROCEEDING THE EVENTS FIRST GIVING RISE TO A CLAIM.
8. Injunctive Relief.
9. Arbitration Agreement and Waiver of Class
a) Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and
b) Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse.
You may begin an arbitration proceeding by following the American Arbitration Association’s (AAA’s) filing requirements and mailing a request for arbitration and description of your claim to our registered agent. The AAA’s Rules of Commercial Arbitration will apply (available at www.adr.org or by calling 1-800-778-7879). The arbitrator will have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this agreement to arbitrate. Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.
You may opt out of this agreement to arbitrate by providing written notice of your intention to do so to Zingity within 60 days of the earlier of your first use of the Site or Services or your registration with the Site or Services.
10. No Waiver; Severability.
This Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and us.
13. Application and Mobile Platform Providers.
WITH RESPECT TO ANY MOBILE APPLICATION, EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT NO MOBILE PLATFORM PROVIDER, SUCH AS APPLE INC. ("APPLE") OR GOOGLE INC., HAS ANY OBLIGATION WHATSOEVER TO FURNISH ANY MAINTENANCE OR SUPPORT SERVICES.
IN THE EVENT OF ANY FAILURE OF ANY MOBILE APPLICATION TO CONFORM TO ANY WARRANTIES SET FORTH HEREIN, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE APPLICATION TO YOU; AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION.
THE MOBILE PLATFORM PROVIDER IS NOT RESPONSIBLE FOR ANY OF YOUR CLAIMS RELATING TO THE MOBILE APPLICATION, INCLUDING WITHOUT LIMITATION, (A) PRODUCT LIABILITY CLAIMS, (B) CLAIMS THAT THE MOBILE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT, (C) CLAIMS ARISING UNDER ANY CONSUMER PROTECTION OF SIMILAR LEGISLATION, AND (D) CLAIMS THAT THE APPLICATION INFRINGES ON ANY THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
IF YOU HAVE PURCHASED ANY SERVICES (THE "PURCHASED ITEMS") FROM ZINGITY DIRECTLY, THE FOLLOWING ADDITIONAL PROVISIONS APPLY TO YOU:
14. Fees and Payment Provisions.
If You provide credit card information, You authorize Zingity to charge such credit card for the License, including, for the Initial Term(s) and any Renewal Term(s) as set forth in Section 15.
You agree, understand and confirm that the payment information provided by You will be correct and accurate and you are using a form of payment that You are legally authorized to use for this purpose. You agree that You are liable for any payment or credit card fraud, abuse or unauthorized use by You or others.
Your payment information will not be utilized and shared by us with any third parties other than our payment service unless required by law, regulation or court order.
15. Term and Termination.