Terms of Service
(Effective as of June 10, 2020)
These Terms of Service shall apply to all users of the Services, the Application and the Website as such terms are hereinafter defined and include visitors to the Website, users who access the Service, the Application and the Website for free and those users that obtain access to the Services, the Application and the Websites through a subscription plan offered by us and pursuant to an agreement between us and You. If You are part of an organization that makes the Application and the Service available to You as an employee or independent contractor relative to such organization, which organization has entered into a separate agreement with us (the “Organizational Agreement”) with respect to the Application, the Service and the Website and/or the delivery, access and use of the Services, the Application and the Website You are likewise referred to herein as a User, subject to the terms and conditions of any such Organizational Agreement. Whether You are a direct user of the Services, the Application and/or the Website or if you derive your right to receive, access and use the Services, Application and/or the Website pursuant to an Organizational Agreement, you are hereinafter referred to as “You” “you” “Your”, “your”, a “User” or a “uder”).
These Terms of Service may be modified by us from time to time. You should check out this page and the terms of Service as they exist from time to time for updates and if You do not agree to be bound by, or You cannot comply with, the modified Terms of Service as they exist from time to time, You must stop using the Application, the Service and Website immediately. Any modified and/or updated Terms of Service applicable to the Application, the Service and/or the Website shall become effective on the date that they are posted and will govern the accessing of and use of the Application, the Service and the Website. If You continue to use the Application, the Service and/or the Website after any such update, You will automatically be deemed to have accepted any changes to the Terms of Service.
(a) Service. Zookeeper, Inc. (“ZOO” “we,” “us” “our”) offers a mobile cloud based project management system mobile application called Youni, modeled after an archetype of our universe, which contains productivity, collaborative and organizational tools for users (collectively, the “Service”), together with information regarding the subscription for the Service and information regarding us, the Services, and use of and functionality within, the Youni mobile application (the “Application”), and contained on our website located at www.getyouni.com (the “Website”).
(b)User Requirements. You must be at least 16 years old to use the Services, the Application and the Websites and You must be able to understand and agree to these Terms of Service and You hereby represent, warrant and agree that You are at least 16 years old at the time that You access and use the Application, the Service and/or the Website and that You have read and understand and agree to these Terms of Service. If You are prohibited at any time from accessing or using the Services, the Application or the Website, unless and until you receive written approval of ZOO to thereafter access or use the Services, the Application and with Website, which approval may be withheld for any reason, you shall be prohibited from using or accessing the Services, the Application and with Website.
(c)United States Users. These Terms of Service apply only to users located in the United States. Those using the Services, the Application and/or the Website outside of the United States will be subject to a separate and different set of terms or use.
(d)No entitlement to future features and functionality. You agree that in using and/or subscribing to our Service, You are not entitled to, nor is your use or subscription contingent upon the provision by us of any future, functionality or features not contained in the Service at the time of your subscription to the Service (whether free or paid), including but not limited to any third party services included as a feature or function of the Application or the Website and any features or functions and any features or functions that we may discuss in public statements made by or on behalf of us.
2.Intellectual Proprietary Rights and User License.
(a)IP Rights. The Service, the Application and the Website, including but not limited to any software (including source code), application programming interface, text, graphics, designs, video clips, audio clips, names, logos, trade marks and service marks, workflow, features and functionality, pictures, photos, artwork, copy and content in connection therewith (including any and all related and underlying technology), together with any and all enhancements, upgrades, updates, modifications or derivative works thereof (“Zoo Materials”), have been developed, prepared and delivered in whole or in part by ZOO and our partners, licensors and other sources and are owned by and the property of ZOO, its partners, licensors and other sources. You acknowledge and agree that you understand that ZOO and its partners, licensors and other sources have expended considerable time, money and effort in developing and delivering the Service, the Application and the Website to You and that the ZOO Materials constitute valuable intellectual property that is owned by ZOO and its partners, licensors and/or others and that the Zoo Materials are or may be protected under United States copyright laws, international treaty provisions, trademarks, service marks, patents and other intellectual property laws applicable thereto. You further acknowledge and agree that the Services, the Application and the Website are also protected as a collective work or compilation under U.S. copyright and other laws and treaties. You agree to be bound by and to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Service, the Application and the Website and/or applicable to the Service, the Application and the Website. You agree not to violate ( and to prevent others from violating) the proprietary rights of ZOO and all others having rights in the Service, the Application and the Websites including but not limited to the ZOO Materials, during your accessing or use of the Service and after you cease accessing or using the Service, the Application and the Website. You also agree to comply with all written requests made by ZOO or its partners and/or licensors of content or services using in connection with the development and/or delivery of the Service, the Application and the Website (collectively, “ZOO Affiliates”) to protect their respective contractual, statutory, and common law rights in and to the Services, the Application and the Website and the ZOO Materials. You agree to notify ZOO immediately upon You becoming aware of any claim that the Services, the Application and/or Website infringe upon any copyright, trademark, or other contractual, statutory, or common law rights of any third person or entity. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks,
(b)Limited right to use. Subject to your compliance with these Terms of Service, as well as with any acceptable use standards promulgated by ZOO at any time, ZOO grants You a limited,
(c) Rules compliance. All Users must comply with the following rules regarding acceptable use of the Service, the Application and the Websites. You may not:
(1)access, tamper with, or use
(2)probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
(3)access or search the Service, the Application and/or the Websites by any means other than ZOO’s publicly supported interfaces (for example, “scraping”);
(4)attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
(5)interfere with or disrupt the access of any user, host or network, including, but not limited to, by sending a virus, overloading, flooding, spamming, mail-bombing the Service, the Application and/or the Website, or by scripting the creation of User Content in such a manner as to interfere with or create an undue burden on the Service, the Application and the Website.
(6)sell, transfer, convey, assign, sublicense, disclose, resell, market, display or broadcast the Service and/or the Application to any third person or entity, including your affiliates or use the Service and/or the Application in any service bureau arrangement.
(7)reverse engineer, decompile, disassemble, decrypt, derive or attempt to derive source code of the Service, the Application or the Website or any components thereof.
(8)use the Service, the Application or the Website for any competitive purpose including the development or enhancement of a competing service, application or website.
(9)copy, modify, translate, alter, improve, change or create derivative works of the Service , the Application or the Website or any parts thereof.
(10)use or display logos of the Service, the Application or the Website without the prior written consent of ZOO.
(11)remove, deface, alter ZOO’s identification or any third party’s identification or attribution, copyrights, trademarks or other proprietary rights which are a part of, contained in or provided as part of the Service, the Application or the Website.
(12)utilize the Service, the Application and/or the Website to carry out, promote or support:
(i)any unlawful or fraudulent activities;
(ii)the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
(iii)activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;
(iv)the publishing or posting of other people’s private or personal information without their express authorization and permission;
(v)the sending of unsolicited communications, promotions advertisements, or spam;
(vi)the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
(vii)the promotion or advertisement of products or services other than your own without appropriate authorization.
(13)post any User Content on the Service, the Application or the Websites that:
(i)violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
(ii)is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking;
(iii)contains any personal information of minors;
(iv)contains any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information without ZOO’s prior written consent granted as part of a Customer Agreement;
(v)contains viruses, bots, worms, or similar harmful materials; or
(vi)contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.
(d) Promotion and marketing. You agree to allow us to use your name, likeness and logo on the Website and in the Service and the Application and in any promotional or marketing materials or in any public statements to identify You as a customer of ZOO and a user of the Service and the Application Youni.
(e) Feedback. We expect that You as a user of the Service, the Application and the Website may periodically provide feedback to us in the form of suggestions for features and functionality, comments and other feedback relative to the Service, the Application and the Website (the “Feedback”). You acknowledge and agree that any such Feedback shall be deemed part of the ZOO Materials and is therefore the sole and exclusive property of ZOO. You further acknowledge and agree that any such Feedback is true and accurate and does not infringe on the rights of any third person or entity. You hereby irrevocably assign to ZOO all right, title and interest in and to the Feedback that You may have and agree that you waive any claims to any past, present or future moral rights, artist rights or any other rights in and to the Feedback, throughout the world.
(f) Rules violations. In addition to any other remedies that may be available to us, ZOO reserves the right to take any remedial action it deems necessary and appropriate, including, but not limited to, immediately suspending or terminating your account or your access to the Service, the Application or the Website, upon notice and without liability for ZOO should You fail to abide by the rules in this Section 2 of these Terms of Service or if, in ZOO’s sole discretion, such action is necessary to prevent disruption of the Service, the Application or the Website for other users. If You are a Subscriber, ZOO reserves the right to notify the Customer’s Account Administrator(s) or other Customer representative(s) of any violations of these Terms of Service.
3.Registration for the Service, the Application and the Website
(a)Account registration. ZOO requires that You must register for a ZOO account to access the Service, the Application and/or certain parts of the Website reserved for Users, and in connection with such registration, You must create a User name and password. You represent, warrant and agree that upon your registration for a ZOO account, You will provide us with true, accurate and complete registration information requested. Once You have registered, ZOO assumes no responsibility or liability whatsoever for the confidentiality or security of your password, but rather it is Your responsibility to ensure that Your password remains confidential and secure. By registering, You agree that You are fully responsible for all activities that occur under your user name and password in connection with your access of and use of the Services, the Application and the Websites. If we receive any communications from your account with us, we shall be entitled to assume that such communications have been received by us from You.
(b)Unauthorized use. If at any time You become aware of any unauthorized use of or access to your account, You understand and agree that ZOO may require You to provide information that may be used to confirm your identity and help ensure the security of your account. ZOO will not be liable for any loss, damages, liability, expenses or attorneys’ fees that You may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether You have or have not advised us of such unauthorized use. You will be liable for costs, expenses, losses, damages, liability, expenses and attorneys’ fees incurred by ZOO or a third party due to someone else using your account and You agree to indemnify defend (with counsel acceptable to and approved by ZOO) and hold ZOO and its officers, directors, members, shareholders and agents harmless from and against such costs, expenses, losses, damages, liability, expenses and attorneys’ fees arising out of or in connection therewith.
(c)User responsibility. You are fully and completely responsible for the manner in which your account is used and for the information, documents and other materials which are shared and/or uploaded between You and others to whom you provide access to your account. You are responsible for the activities of all other Users with whom you communicate through the Service, the Application and/or the Website. Consequently any action taken by such other Users shall be the responsibility of You and You therefore shall have no claim against ZOO or its shareholders, directors, officers or employees of ZOO with respect thereto.
4.User Submitted Data and Content
(a) User Content defined. The Service and the Application allow You, among other things, to create projects,
(b)License to use. You hereby grant to ZOO and worldwide, royalty free limited license to access, use, process, copy, distribute, perform, export and display the User Content. To the extent that the User Content which is reformatted for display in the Service, the Application or the Website, constitutes a modification or derivative work, the aforementioned license shall include the right to make modifications and derivative works.
(c)License limitation. The license herein granted with respect to User Content is limited solely as required to (i) maintain, provide and improve the Service, the Application and the Website; (ii) prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such User Content is in violation of these Terms of Service; (iv) to comply with a valid legal subpoena, request, or other lawful process; and, (v) as otherwise expressly permitted in writing by You.
(d)User Content rights. You acknowledge, represent, warrant and agree that you have all required rights to submit and access, use, process, copy, distribute, share, export and display the User Content and Feedback without violation of any
(e)User Indemnity. You understand that ZOO does not control, and is not responsible for, User Content or Feedback, and therefore ZOO assumes no responsibility or liability for User Content and You shall be and remain responsible for User Content and all liability and other consequences of using, storing, transmitting, delivering and disclosing all User Content. By using the Service, the Application and/or Website, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. You agree that You will indemnify, defend, and hold harmless ZOO for all claims, actions, suits, demands, costs, expenses and liability resulting from User Content or Feedback you or others with whom you interact and share User Content, submit through the Service, the Application and/or Website. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, at your cost and expense and in any event You agree to cooperate with us in asserting any available defenses.
(a)Term. The Service and the Application are provided on a subscription basis for a monthly or yearly duration to be chosen and paid for by You when you subscribe for the Service and the Application (the “Subscription”).
(b)Subscription Fees. In consideration for the provision of the Service and the use of the Service and the Application, You agree to pay ZOO the then applicable subscription fee, in US dollars, for the purchased Subscription (the “Subscription Fee”). You hereby authorize ZOO, either directly or through our payment processing service, to charge the Subscription Fee via your selected payment method, on the date such payment is due.
(c)Taxes. Subscription fees do not include any applicable taxes which may be levied or imposed on the purchase or sale of the Subscription hereunder (the “Tax”). You shall be responsible for any such Tax and such tax shall be deemed added on top of the Subscription Fee payable by You for the Service and the Application.
(d)Additional Restrictions. ZOO reserves the right to change the Subscription Fee or offer a different subscription pricing and/or impose additional restrictions for the upload, storage, download of User Content and/or use of the Service and the Application, in the event that ZOO determines in its sole discretion, that You or anyone with whom You use, or share User Content within the Service and the Application, have misused the Service or the Application or if your use of the Service and the Application is excessive compared to the expected customary use.
(e)Billing. You agree to provide ZOO, either directly or through our billing partners, with complete and accurate information regarding so as to permit ZOO to properly and accurately bill You for the Service and the Application. You hereby authorize ZOO and/or its billing partners to charge and collect payment for the Service and the Application via your selected payment method, or designated bank account and to make inquiries as necessary in our opinion to validate any payment accounts, bank accounts or methods or financial institutions, including but not limited to, obtaining updated payment information regarding credit cards that may have expired.
(f)Auto Renewal. To prevent any interruption in the use of the Service and the Application, your Subscription contains an automatic renewal feature as a default setting, unless You cancel your then current Subscription prior to the expiration of the then current term of your Subscription. Therefore, unless you cancel your Subscription or disable the auto renew option (through Account Settings), prior to the expiration of its current term, your then current Subscription will automatically renew for another term equal to that of your current Subscription and ZOO will automatically bill the payment method which You used to purchase your then current Subscription and unless notified otherwise by ZOO, at the same price that you paid for the then current Subscription (exclusive of any promotion offered for the then current Subscription). If you cancel a Subscription prior to the expiration of its current term, the Subscription will not be renewed, but You will not receive a discount or refund for any unexpired period of the then current term.
(g)Resellers or Affiliates. In the event that You purchase a Subscription for the Service and the Application from a reseller or affiliate authorized by ZOO, to the extent that any agreement between You and that reseller or affiliate conflicts with any of the provisions of these Terms of Service, then the provisions of these Terms of Service shall prevail and be controlling. Therefore any rights granted to you by a reseller or affiliate must be enforced against such reseller or affiliate and not ZOO.
(h)Refund Policy. If at any time, if payment is declined by any payment method that You use to Subscribe to the Service and the Application and pay the Subscription Fee, such failure shall be deemed a material breach of this Agreement and ZOO may, in addition to any other remedy available to ZOO at law or in equity, then disable and prevent your use of the Service and the Application, until such time as you pay the then current Subscription Fee in full, together with any costs, expenses incurred by ZOO as a result of such declination of payment.
(i)Free Trial Service. ZOO is currently offering a free seven (7) day trial use of the Service and Application (the “Trial”). Prior to using the Service and Application in the Trial, You will be asked to provide your billing information and the type of subscription that you desire. In the event that you do not disable the auto renew option in Account Settings or you do not cancel your Trial Subscription at least 24 hours prior to the expiration of the Trial period, you will automatically be Subscribed for the Service and the Application for the period of the Subscription chosen by You at the beginning of the Trial. You agree that ZOO will have no responsibility or liability to You if the Service or the Application does not function properly in any way during the Trial period.
(a)Third Party Services defined. The Service, the Application and the Website allows You to engage with and use certain services, applications, widgets, and tools owned and/or controlled by third parties or which may be integrated into the Services, the Application and the Website via our Application Programming Interface (the “Third Party Services”). The Service, the Application, the Website and Third Party Services may also contain links to third party websites that are neither owned nor controlled by ZOO (‘Links”)
(b)Separate relationship with Third Parties. You hereby acknowledge and agree that ZOO is acting only as an intermediary between You and the provider of any such Third Party Services and/or any such Links and as such, ZOO does not endorse or is ZOO responsible or liable in any way for such Third Party Services or any such Links. Instead, your rights and obligations with respect to the use of such Third Party Services and the Links and the collection, processing and use of your personal data and User Content, are governed by your agreement with any such Third Party Services providers (“Third Party Services Agreement”) and the rules governing the use of the Links to third party websites, as established by the owners of such linked websites. ZOO is not a party to any such Third party Services Agreement between You and such Third Party Services provider, and therefore, is not responsible or liable for compliance by either You or any Third Party Services provider with any such Third Party Services Agreement. ZOO is also not responsible for your use and linking to any third party websites, nor for any content that You may send to or post on such third party websites.
(c)Limitation of liability. ZOO IS NOT RESPONSIBLE FOR THE AVAILABILITY OF ANY THIRD PARTY SERVICES OR EXTERNAL WEBSITE LINKS OR RESOURCES AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR (I) ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH LINKED SITES OR THIRD PARTY SERVICES, (II) ANY ERRORS OR OMISSIONS IN THESE LINKED SITES OR THIRD PARTY SERVICES, OR (III) ANY INFORMATION HANDLING PRACTICES OR OTHER BUSINESS PRACTICES OF THE OPERATORS OF SUCH SITES OR THIRD PARTY SERVICES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ZOO SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY LINKED SITES OR THIRD PARTY SERVICES. YOUR INTERACTIONS WITH SUCH THIRD PARTIES WILL BE GOVERNED BY THE THIRD PARTIES’ OWN TERMS OF SERVICE AND PRIVACY POLICIES, AND ANY OTHER SIMILAR TERMS AND AGREEMENTS BETWEEN YOU AND SUCH THIRD PARTIES.
(d)Fees. ZOO may change fees for the accessing and use of the Service (including the imposition of a fee for a Third Party Service that was previously offered for free), the Application and the Website in the event that any Third Party Service provider changes their fees for the use and/or integration of such Third Party Services in connection with the Service, the Application and/or the Website.
(e)Discontinuation of Third Party Service. ZOO reserves the right to discontinue, at any time and for any reason, any Third Party Services used in connection with the Service, the Application or the Website. In such event, certain functions and features of the Service the Application and the Website may become unavailable for your use. However, in such event, there will be no change in your Subscription Fee, unless and until ZOO, in its sole discretion agrees to any such change.
8.Warranties, Disclaimers and Limitation of Liability.
(a)THE SERVICES, THE APPLICATION AND THE WEBSITE, THEZOO MATERIALS AND USER CONTENT, WHETHER PROVIDED BY ZOO, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE, THE APPLICATION AND THE WEBSITE ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, ZOO DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICE, THE APPLICATION AND THE WEBSITES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF USER CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICE, THE APPLICATION AND THE WEBSITE OR THE SERVER(S) THAT MAKE THE SERVICE, THE APPLICATION AND THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(b)IN NO EVENT SHALL ZOO OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE ACCESS AND USE OF THE SERVICE, THE APPLICATION AND THE WEBSITE, ANY MATERIALS (INCLUDING ZOO MATERIALS), INFORMATION, USER CONTENT OR RECOMMENDATIONS APPEARING ON THE SERVICE, THE APPLICATION AND/OR THE WEBSITE, OR ANY THIRD PARTY SERVICES ACCESSED OR USED IN THE SERVICE, THE APPLICATION OR THE WEBSITE, ANY LINK PROVIDED ON THE SERVICE, THE APPLICATION AND THE WEBSITE, WHETHER OR NOT ZOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE SERVICE, THE APPLICATION OR WEBSITE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, THE TOTAL SUM OF $100.
(c)ZOO DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY (INCLUDING ANY USER OF THE SERVICE, THE APPLICATION AND/OR THE WEBSITE THROUGH THE SERVICE, THE APPLICATION AND/OR WEBSITE OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE, THE APPLICATION AND WEBSITE, AND ZOO WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND
(d)You hereby acknowledge, represent and agree that the limitations of liability and warranties and disclaimers contained in these terms of service are agreed to by You and ZOO and we both agree that such limitations and allocations of risk are commercially reasonable and suitable for the purposes of our relationship with one another and the provision by ZOO and the access and use by You of the Service, the Application and the Website.
(b)ZOO’s Indemnity. ZOO agrees to defend You against any third party claim or demand against You, alleging that Your authorized use of the Service, the Application or the Website infringes or constitutes misappropriation of any third party’s trademark, copyright or registered United States Patent (an “IP Claim”). ZOO will indemnify and hold You harmless from and against any damages and costs (i) finally awarded with respect to such IP Claim in a court of competent jurisdiction; or, (ii) set forth in a written settlement agreement to which we agree. ZOO’s indemnity obligations hereunder shall not apply (i) if the Service, the Application and/or the Website was modified by You, any of your Users or any third party; or (ii) if the Service, the Application and/or the Website is used in combination with any other service, device, software or products, including but not limited to any Third Party Services or Links, but solely to the extent that such IP claim would not have arisen without such combination; or, (iii) any IP claim arising out of, in connection with or related to User Content or the indemnity obligations of You set forth in paragraph 9 (a) above. In the event that ZOO, in its sole discretion, believes that the Service, the Application or the Website infringes on third party rights, ZOO may (i) obtain the right to continue the Service, the Application and the Website; or, (ii) replace or modify the infringing part of the Service, the Application and/or the Website so that it no longer infringes on any third party rights; or, (iii) discontinue the Service and access to and use of the Service, the Application and/or the Website an in such event refund to You a pro rata portion of your Subscription Fee for the then current Subscription period.
(c)Exclusive Remedy. PARAGRAPH 9 (B) SETS FORTH ZOO’S SOLE AND ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY IN THE EVENT OF ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY ZOO, ITS SERVICE, THE APPLICATION AND/OR THE WEBSITE.
(d)Indemnity Requirements. In order to invoke the indemnity remedies set forth in paragraph 9(b), the indemnified party must (i) give prompt notice to the indemnifying party of any event giving rise to any IP Claim and cooperate fully and reasonably with the indemnifying party in the defense and/or settlement of the IP Claim; and, (ii) immediately give the indemnifying party exclusive control over the defense and/or settlement of the IP Claim, provided that the indemnifying party may not settle any such IP Claim without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed.
ZOO reserves the right at any time to modify or discontinue, temporarily or permanently, the Service, the Application and Website (or any part thereof), with or without notice. You agree that ZOO shall not be liable to You or any third party for any modification, suspension or discontinuance of the Service, the Application and Websites.
11.Mandatory Arbitration and Class Action Waiver
(a)Class Action waiver. You and ZOO agree that the arbitration provided for in this paragraph 11, shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND ZOO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
(1)Agreement to arbitrate. Any and all disputes between us arising out of or in connection with these Terms of Service, the accessing and use of the Service, the Application and/or the Website, including but not limited to (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these Terms of Service or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms of Service, shall be settled by binding arbitration. The only disputes excluded from this arbitration requirement are the right of ZOO or You to seek injunctive relief in a court of law and the right of ZOO to file suit in a court of law against You to address intellectual property rights claims.
(2) Mediation. Prior to seeking Arbitration under the terms of this Paragraph 11, in the event that You have a dispute with ZOO, you agree to first contact ZOO and describe to ZOO in writing the exact nature of the dispute, together with your contact information so we can reach out to You to discuss same. Except for intellectual property claims or actions for injunctive relief, You agree to use your best efforts to settle any dispute, claim, question, or disagreement directly through consultation with ZOO, and good faith negotiations shall be a condition to either party initiating arbitration. If the parties do not reach an
(3)Arbitration Rules. Any arbitration instituted by either You or Zoo hereunder shall be governed by the rules of the American Arbitration Association as promulgated from time to time and the venue for any such Arbitration shall be in Suffolk County, Long Island, New York and the law to be applied in any such Arbitration proceeding shall be the law of the State of New York. The award of the Arbitrator shall be final and binding on the parties to the Arbitration and shall be enforceable in any court of competent jurisdiction located in Suffolk County, Long Island, New York.
(4)Timing to commence Arbitration. Any claim subject to Arbitration hereunder must be commenced within two (2) years following the date that the aggrieved party asserting the claim first knows or should reasonably know of the act, omission or default giving rise to the claim. Failure of either party to assert a claim in the manner and within the time period stated herein shall be barred from asserting such claim and obtaining a remedy therefor.
(6)Further exception to Arbitration. In addition to the other exceptions to the requirement for mandatory Arbitration under the provisions of this paragraph 11, You or ZOO may also seek relief in small claims court in Suffolk County, Long Island, New York for disputes or claims within the scope of that court’s jurisdiction.
(7)Survival. This Mandatory Arbitration and Class Action Waiver paragraph 11 and the rights and obligations of You and ZOO hereunder shall survive any termination of your use of the Service, the Application and Website.
12.Governing Law. These Terms of Service shall be construed in accordance with and governed by the laws of the State of New York, without regard to conflicts of law principles. Any dispute arising out of these terms and conditions or the use of the Service, not subject to Arbitration as set forth in paragraph 11 above shall be initiated and conducted in the state or federal courts of Suffolk County, Long Island, New York, and You and ZOO consent to the exclusive jurisdiction of such courts.
(a)No Third Party Beneficiaries. Nothing in these Terms of Service, express or implied, is intended to, nor shall it be construed as, conferring or giving any rights to any third person or entity (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or any provision contained herein or contemplated here
(b)Severability. The invalidity or unenforceability of any provision of these Terms of Service will not affect the validity or enforceability of any other provision of these Terms of Service, each of which will remain in full force and effect.
(c)Force Majeure. Under no circumstances shall ZOO or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
(d)No Waiver. No waiver of any provision of these Terms of Service will be binding unless in writing, no waiver of any provisions of these Terms of Service in one (1) instance will be deemed a further or continuing waiver of such provision or any other provision, and the failure of ZOO to exercise or enforce any right or remedy in these Terms of Service does not waive that right or remedy.
(e)Time to file a claim. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service, the Application and the Website and/or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(f)Entire Agreement. These Terms of Service (and all terms and conditions incorporated herein) constitute the entire agreement between You and ZOO and govern your use of the Service, the Application and the Website, and supersede any prior agreements between You and ZOO on the subject matter.
(g)No Assignment. These Terms of Service, and any rights or licenses granted hereunder, may not be assigned or delegated by You. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by ZOO without restriction.
(h)Binding Effect. These Terms of Service shall be binding upon and inure to the benefit of You and ZOO and their respective successors and permitted assigns. You agree that any agreements made by and between You and ZOO in electronic form are as legally binding as if made in physical written form.
(i)Survival. Any provision of these Terms of Service that by its nature is reasonably intended to survive beyond termination of these Terms of Service shall survive the termination or earlier expiration of these Terms of Service in accordance with its terms..
(j)Notices. ZOO may deliver notice to You by