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Terms Of Service and Privacy Policy

ZappyLab

TERMS OF SERVICE

Effective Date: August 15th, 2012.

PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITES/APPS AND SERVICES.

Overview

It’s important that you read this entire Terms of Service (“Terms”); but, here are some of the more significant terms that we want to bring to your attention:

Introduction

Welcome to a site or application (the “Sites/Apps”) that is owned and/or operated by ZappyLab, Inc. (collectively, “Company,” “we,” “our”, or “us”)! These Terms govern your use of the Sites/Apps, regardless of how you access or use it. By “Sites/Apps”, we mean any Internet domain address within which these Terms are posted and all features, widgets, applications, content, and downloads that are operated by us and that are available through or interact with it, and/or post links to these Terms. By using the Sites/Apps, you acknowledge and accept the Sites/Apps’ Privacy Policy and consent to the collection and use of your data in accordance with the Privacy Policy. By using the Sites/Apps, you further agree that Company may change, alter, or modify the settings or configurations on your Internet Device (defined below) in order to allow for or optimize your use of the Sites/Apps.

If You Want to Use This Sites/Apps,

then carefully read these Terms, as they constitute a written agreement between you and Company and they affect your legal rights and obligations.

Each time you access and/or use the Sites/Apps (other than to simply read these Terms), you agree to be bound by and comply with all of the terms of these Terms and any Additional Terms (defined below). Therefore, do not use the Sites/Apps if you do not agree to all of the terms of these Terms and any Additional Terms.

The business realities associated with operating the Sites/Apps are such that, without the limitations that are set forth in these Terms -- such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes – Company would not make the Sites/Apps available to you.

In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Sites/Apps or to a service or product offered via the Sites/Apps (in each such instance, and collectively, “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Please also review the terms of the Sites/Apps’ Privacy Policy, which you accept by using the Sites/Apps.

Table of Contents

It is important that you read and understand the entire Terms before using the Sites/Apps. However, this table of contents further highlights key issues and points and you can click on the headings to be taken to the full explanation.

  1. Sites/Apps Content, Ownership, Limited License, and Rights of Others
    We grant only you a limited revocable license to use the Sites/Apps. More
  2. Feedback You Submit
    You grant us a broad license, which we may sublicense, to any feedback or content you submit. More
  3. Sites/Apps and Content Use Restrictions
    Your use is subject to our rules. More
  4. Opening and Terminating Accounts
    You may open, revise and close your accounts. More
  5. Questions
    Click here to contact us for questions.
  6. Links by You to the Sites/Apps
    You may link to our Sites/Apps, subject to basic rules. More
  7. Linked-To Websites; Advertisements; Dealings with Third Parties
    We are not responsible for third parties or their apps or websites. More
  8. Wireless
    Wireless carrier charges may apply. More
  9. Dispute Resolution
    You agree to arbitrate most disputes and waive jury trial and class actions. More
  10. Disclaimer of Representations and Warranties
    We disclaim most warranties and provide the Sites/Apps “As Is”. More
  11. Limitations of Liability of Company Parties
    Our liability is greatly limited. More
  12. Waiver of Injunctive or Other Equitable Relief
    You waive equitable or injunctive relief. More
  13. General Provisions
    You agree to various other terms and conditions. More
  14. Terms Applicable if Accessing the Sites/Apps Through an Apple Device
    There are some other things you should know if you are accessing the Sites/Apps through an Apple device. More
  15. Digital Millennium Copyright Act

Full Details of Terms of Service

1. Sites/Apps Content, Ownership, Limited License, and Rights of Others

A. Content. The Sites/Apps contains a variety of: (i) materials and other items relating to Company and its products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Sites/Apps, and the compilation, assembly, and arrangement of the materials of the Sites/Apps and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Company (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).

B. Ownership. Content generated by our users belongs to the users and is licensed under the Creative Commons Attribution License (CC-BY). The Sites/Apps (including past, present, and future versions) and the Content generated by the Company are owned or controlled by Company and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Sites/Apps is the property of Company or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible. Company owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Sites/Apps.

C. Limited License. Subject to your strict compliance with these Terms and the Additional Terms, Company grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use via a standard web browser to enable display) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, an “Internet Device”) for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Company’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.

D. Rights of Others. In using the Sites/Apps, you must respect the intellectual property and other rights of Company and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Company respects the intellectual property rights of others.

2. Feedback You Submit

In your communications with Company, please keep in mind that unless we expressly request them, Company does not seek any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs for scientific tools or otherwise (collectively, “Unsolicited Ideas and Materials”). Any information and materials you post on or send to us via the Sites/Apps (regardless of whether we have requested them or not) are deemed Unsolicited Ideas and Materials and licensed to us as set forth below. In addition, Company retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Company’s receipt of your Unsolicited Ideas and Materials is not an admission by Company of their novelty, priority, or originality, and it does not impair Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

Except as otherwise described in the Sites/Apps’ posted Privacy Policy or any Additional Terms, you agree that (a) your Unsolicited Ideas and Materials will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) Company does not assume any obligation of any kind to you or any third party with respect to your Unsolicited Ideas and Materials. Upon Company’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of Unsolicited Ideas and Materials may not be secure, and you will consider this before submitting any such materials and do so at your own risk. You acknowledge that other users may have created ideas and concepts contained in their Unsolicited Ideas and Materials that may have familiarities or similarities to your own Unsolicited Ideas and Materials, and that you will not be entitled to any compensation or right to negotiate with Company because of these familiarities or similarities. Notwithstanding any custom and practice to pay an individual for an idea (if any), nothing herein shall create an implied or express contract to compensate users for their Unsolicited Ideas and Materials and there is no obligation for Company to pay or otherwise compensate you for any of ideas or materials in any communications with Company, whatsoever.

By providing Unsolicited Ideas and Materials to us or others via the Sites/Apps you hereby grant to Company the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Unsolicited Ideas and Materials (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such Unsolicited Ideas and Materials and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any Unsolicited Ideas and Materials for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to Company to your Unsolicited Ideas and Materials, you also hereby grant to Company, and agree to grant to Company, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Unsolicited Ideas and Materials, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Unsolicited Ideas and Materials, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2.

From time to time, areas on the Sites/Apps may expressly request submissions of concepts, improvements, feedback, or other potential content from you (“Invited Submissions”). Where this is the case, please carefully read any Additional Terms which appear elsewhere on the Sites/Apps to govern those submissions, as they will affect your legal rights. If no Additional Terms govern those submissions, then this Section 2 of these Terms will apply in full to any Invited Submissions and you grant us a license to them just as if they were Unsolicited Ideas and Materials.

3. Sites/Apps and Content Use Restrictions

A. Sites/Apps Use Restrictions. You agree that you will not: (i) aside from the purchase of goods or services offered for sale by Company or its affiliates, use the Sites/Apps for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Company trademarks or trade names; (iii) engage in any activities through or in connection with the Sites/Apps that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Company; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Sites/Apps source or object code or any software or other products, services, or processes accessible through any portion of the Sites/Apps; (v) engage in any activity that interferes with a user’s access to the Sites/Apps or the proper operation of the Sites/Apps, or otherwise causes harm to the Sites/Apps, Company, or other users of the Sites/Apps; (vi) interfere with or circumvent any security feature of the Sites/Apps or any feature that restricts or enforces limitations on use of or access to the Sites/Apps or the Content; or (vii) otherwise violate these Terms or any Additional Terms.

B. Content Use Restrictions. You also agree that, in using the Content: (i) you will not monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine activity or use of a standard browser) on the Sites/Apps by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party application or webSites/Apps, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Company or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

C. Availability of Sites/Apps and Content. Company may immediately suspend or terminate the availability of the Sites/Apps and Content (and any elements and features of them) for any reason, in Company’s sole discretion, and without advance notice or liability.

D. Reservation of All Rights Not Granted as to Content and Sites/Apps. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Sites/Apps. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Company and its licensors and other third parties. Any unauthorized use of any Content or the Sites/Apps for any purpose is prohibited.

4. Opening and Terminating Accounts

In order to access or use some (or potentially all) of the features on the Sites/Apps, you must first register through our online registration process. The Sites/Apps’ practices governing any resulting collection and use of your personal information are disclosed in its Privacy Policy.

If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Internet Device so that others may not access any password protected portion of the Sites/Apps using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.

We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.

If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.

5. Questions

If you have a question regarding using the Sites/Apps, you may contact Company by sending an e-mail to info@zappylab.com. You acknowledge that the provision of customer support is at Company’s sole discretion and that we have no obligation to provide you with customer support of any kind. We may provide you with customer support from time to time, at our sole discretion, provided that you have created an account and that you submit your customer support inquiries using such account.

6. Links by You to the Sites/Apps

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Sites/Apps, so long as: (a) the links only incorporate text, and do not use any trademarked logos or graphics that are owned by or licensed to Company, (b) the links and the content on your websites do not suggest any affiliation with Company or cause any other confusion, and (c) the links and the content on your websites do not portray Company or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Company. Company reserves the right to suspend or prohibit linking to the Sites/Apps for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

7. Linked-To Websites; Advertisements; Dealings with Third Parties

A. Linked Sites; Advertisements. The Sites/Apps may contain links, as part of third-party ads on the Sites/Apps or otherwise, to or from third-party websites (“Linked Sites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Company. Company may have no control over the content, operations, policies, terms, or other elements of Linked Sites, and Company does not assume any obligation to review any Linked Sites. Company does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Company is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Finally, Company will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Sites. Company disclaims all liability in connection therewith.

B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Sites/Apps (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Company disclaims all liability in connection therewith.

8. Wireless

A. Wireless Features. The Sites/Apps may offer certain features and services that are available to you via your wireless Internet Device. These features and services may include the ability to access the Sites/Apps’ features and upload content to the Sites/Apps, receive messages from the Sites/Apps, and download applications to your wireless Internet Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.

B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Sites/Apps for Wireless Features, then you agree to notify Company of any changes to your wireless contact information (including phone number) and update your accounts on the Sites/Apps to reflect the changes.

9. Dispute Resolution

Certain portions of this Section 143 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Company agree that we intend that this Section 9 satisfies the “writing” requirement of the Federal Arbitration Act.

A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Sites/Apps, the Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Company’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 9(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 9(A). Your notice to us must be sent to: info@zappylabs.com. For a period of sixty (60) days from the date of receipt of notice from the other party, Company and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Company to resolve the Dispute or Excluded Dispute on terms with respect to which you and Company, in each of our sole discretion, are not comfortable.

B. Forums for Alternative Dispute Resolution.

(i) Arbitration. If we cannot resolve a Dispute as set forth in Section 9(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 9(B). If we cannot resolve an Excluded Dispute as set forth in Section 9(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Company consent, in a writing signed by you and an Officer or legal representative of Company, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 9(B).

Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Company elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Company do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 9(B)(i), then this paragraph and the remainder of this Section 9(B) will not apply to the Excluded Dispute.

If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an Officer or legal representative of Company consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for a the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.

You can obtain AAA and JAMS procedures, rules, and fee information as follows:

AAA: 800.778.7879
http://www.adr.org/
JAMS: 949.224.1810
http://www.jamsadr.com/

(ii) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Company to pay a greater portion or all of such fees and costs in order for this Section 9 to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.

C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 9(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.

D. Injunctive Relief. The foregoing provisions of this Section 9 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Sites/Apps, any Content, and/or Company’s intellectual property rights (including Company may claim that may be in dispute), Company’s operations, and/or Company’s products or services.

E. Small Claims Matters. Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 9(G).

F. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 9(B)(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 9(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 9(G).

G. Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 9(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Wilmington, Delaware. Accordingly, you and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.

10. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR ACCESS TO AND USE OF THE SITES/APPS IS AT YOUR SOLE RISK.

THE SITES/APPS IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Company Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

  • (a) the Sites/Apps (including the Content);
  • (b) the functions, features, or any other elements on, or made accessible through, the Sites/Apps;
  • (c) any products, services, or instructions offered or referenced at or linked through the Sites/Apps;
  • (d) security associated with the transmission of your Unsolicited Ideas and Materials transmitted to Company or via the Sites/Apps;
  • (e) whether the Sites/Apps or the servers that make the Sites/Apps available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Internet Device);
  • (f) whether the information (including any instructions) on the Sites/Apps is accurate, complete, correct, adequate, useful, timely, or reliable;
  • (g) whether any defects to the Sites/Apps will be repaired; and
  • (h) whether your use of the Sites/Apps is lawful in any particular jurisdiction.

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A COMPANY PARTY, COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

11. LIMITATIONS OF LIABILITY OF COMPANY PARTIES

UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:

  • (a) the Sites/Apps (including the Content);
  • (b) your use of or inability to use the Sites/Apps, or the performance of the Sites/Apps;
  • (c) any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Sites/Apps;
  • (d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
  • (e) any errors or omissions in the Sites/Apps’ technical operation; or
  • (f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Company Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Sites/Apps).

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITES/APPS AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID COMPANY IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY COMPANY OR A MANUFACTURER OF A PHYSICAL PRODUCT.

12. Waiver of Injunctive or Other Equitable Relief

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITES/APPS, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITES/APPS, CONTENT, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.

13. General Provisions

A. Updates to Terms. Company reserves the right to modify these Terms and any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Sites/Apps so that they are accessible via a link on the Sites/Apps, and that your use of the Sites/Apps after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that Company posts them on the home page of the Sites/Apps, or such later date as may be specified in them.

B. Company’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants Company a right of consent or approval, or permits Company to exercise a right in its “sole discretion,” Company may exercise that right in its sole and absolute discretion. No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an Officer of Company.

C. Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.

D. Indemnity. You agree to, and you hereby, defend, indemnify, and hold Company Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your use of the Sites/Apps and your activities in connection with the Sites/Apps; (ii) your breach or anticipatory breach of these Terms or any Additional Terms; (iii) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Sites/Apps or your activities in connection with the Sites/Apps; (iv) information or material transmitted through your Internet Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi any misrepresentation made by you; and (vi) Company Parties’ use of the information that you submit to us (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Company Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Company Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party.

E. Operation of Sites/Apps; Availability of Products and Services; International Issues. Company controls and operates the Sites/Apps from its U.S.-based offices in the U.S.A., and Company makes no representation that the Sites/Apps is appropriate or available for use beyond the U.S.A. If you use the Sites/Apps from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Sites/Apps may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Sites/Apps and/or the provision of any content, program, product, service, or other feature described or available on the Sites/Apps to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.

F. Export Controls. Software related to or made available by the Sites/Apps may be subject to export controls of the U.S.A. No software from the Sites/Apps may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.

G. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”.

H. Communications. When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that, except as set forth in Section 5, we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

I. Investigations; Cooperation with Law Enforcement; Termination; Survival. Company reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Sites/Apps security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Company in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Sites/Apps, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Company under these Terms or any Additional Terms. Upon suspension or termination of your access to the Sites/Apps, or upon notice from Company, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Sites/Apps. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Company in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

J. Assignment. Company may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.

K. No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.

M. U.S. Government Restricted Rights. If you are a government end user, then this provision applies to you. The Sites/Apps provided in connection with these Terms has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer Sites/Apps” and/or “commercial computer Sites/Apps documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212 and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.

N. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the App and you will be responsible for all charges related to them.

14. Terms Applicable if Accessing the Sites/Apps Through an Apple Device

If you are accessing or using the Sites/Apps through an Apple device, the following additional terms and conditions are applicable to you and are incorporated into the Terms by this reference:

  1. To the extent that you are accessing the Sites/Apps through an Apple device, you acknowledge that these Terms are entered into between you and Company and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third party beneficiary as contemplated below.
  2. The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Sites/Apps.
  3. You acknowledge that Company, and not Apple, is responsible for providing the Sites/Apps and Content thereof.
  4. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance any support services to you with respect to the Sites/Apps.
  5. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Sites/Apps.
  6. Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Company, Company, and not Apple is responsible for addressing any claims you may have relating to the Sites/Apps, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Sites/Apps fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  7. Further, you agree that if the Sites/Apps, or your possession and use of the Sites/Apps, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
  8. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
  9. When using the Sites/Apps, you agree to comply with any and all third party terms that are applicable to any platform, website, technology or service that interacts with the Sites/Apps.

15. Digital Millennium Copyright Act

If you are a copyright owner or an agent thereof and believe that any User Submission or other content at this Site infringes upon your copyright, you may submit a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) (see 17 U.S.C. 512(c)(3) for further information) by providing our Copyright Agent (listed below) with the following information: (i) an electronic or physical signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) a description of the copyrighted work claimed to have been infringed or if multiple copyrighted works are covered by a notification, a representative list of such works at our Site; (iii) a description of the location on the Site of the allegedly infringing material(s); (iv) your address, telephone number, and email address; (v) a written statement that you have a good faith belief that use of the material(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a written statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If a User Submission that you submitted has been removed as a result of a notification as described above and you believe that such a User Submission or portion of a User Submission was posted lawfully, please contact us about our counter-notification procedure through which you can dispute the allegation and request re-posting of the User Submission content at issue.

ZappyLab’s designated Copyright Agent for notice of claims of infringement is:

15 Yale Cir, Kensington, CA 94708

Only notices of alleged copyright infringement and requests about the counter-notification procedures should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to ZappyLab at info@zappylab.com. You acknowledge that if you fail to comply with all of the notice requirements of the DMCA, your notice may not be valid.

©2012 ZappyLab, Inc. All Rights Reserved.