Customer Terms of Service Agreement
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Use of Our Service
Zesty provides a place for people to easily order a healthy meal for takeout or delivery.
You may use the Service only if you can form a binding contract with Zesty, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Zesty.
B. Zesty Service
Subject to the terms and conditions of this Agreement, we hereby grant you a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. Zesty reserves all rights not expressly granted herein in the Service and the Zesty Content (as defined below). Zesty may terminate this license at any time for any reason or no reason.
C. Zesty Accounts
Your Zesty account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We maintain two different types of accounts for Users who register with us – accounts for (1) food providers (“Restaurants”) and accounts for (2) food consumers (“Customers”). Restaurants’ use of the Services is governed by the Restaurant Terms of Service Agreement. Customers’ use of the Services is governed by this Agreement
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Zesty immediately of any breach of security or unauthorized use of your account. Zesty will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings in your . By providing Zesty your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences from your Settings page.. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. You acknowledge and agree, however, that you may still receive order confirmation emails, order change and cancelation confirmation emails, delivery confirmation emails and other emails relating to orders placed by you through the Service, even if you have opted not to receive periodic email from Zesty.
D. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service (including without limitation Restaurant menu content and third-party reviews for republication in print or online) in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Zesty servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information from the Service, including private Customer or Restaurant account information, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. You may terminate your account at any time by sending an email to firstname.lastname@example.org, which termination will become effective 7 days following the date that we receive your notice of account termination. Upon termination for any reason or no reason, you continue to be bound by this Agreement. Zesty expressly reserves the right, in its sole discretion, to refuse service, terminate Customer accounts or cancel orders.
You are solely responsible for your interactions with other Zesty Users (which includes Restaurants). We reserve the right, but have no obligation, to monitor disputes between you and other Users. Zesty shall have no liability for your interactions with other Users, or for any User’s action or inaction. You agree to take reasonable precautions in all interactions with Restaurants (online and offline) and will bear all risk arising from having direct contact with Restaurants and waive any claims relating thereto against Zesty.
2. User Content
Some areas of the Service may allow Users to post content such as profile information, restaurant and dish reviews, general comments, questions, photos and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by sharing User Content through the Service, you agree to allow us and others to view, edit, and/or share your User Content in accordance with this Agreement, including allowing us to use your User Content to provide Services to other Customers and Restaurants. Zesty has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
You agree not to post User Content that: (i) is false or inaccurate; (ii) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (iii) may create a risk of any other loss or damage to any person or property; (iv) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (v) may constitute or contribute to a crime or tort; (vi) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vii) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (viii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (ix) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains photos, you hereby represent that you are the owner of all the copyright rights with respect to each and every photo contained in such User Content and have the power to grant the license granted below. Zesty reserves the right, but is not obligated, to reject and/or remove any User Content that Zesty believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
Your User Content and Zesty’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
Zesty may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Zesty takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Zesty shall not be liable for any damages you allege to incur as a result of User Content.
3. User Content License Grant
By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Zesty a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Zesty’s (and its successors’ and affiliates’) business, including without limitation for promoting, redistributing and providing part or all of the Service (and derivative works thereof) in any media formats and through any direct or indirect media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
4. Mobile Software
A. Mobile Software. We make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Service. Zesty does not warrant that the Mobile Software will be compatible with your mobile device. Zesty hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for your Customer account on one mobile device owned or leased solely by you, for your personal, non-commercial use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Zesty may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Zesty or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Zesty reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies: the Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Zesty Service.
B. Mobile Software from iTunes. The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Zesty, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Zesty as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Zesty as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Zesty, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Zesty acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
5. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Zesty Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Zesty and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Zesty Content. Use of the Zesty Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Zesty under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Zesty does not waive any rights to use similar or related ideas previously known to Zesty, or developed by its employees, or obtained from sources other than you.
Certain aspects of the Service may allow you to provide your opinions of Restaurants or specific Restaurant dishes through the Service (“Reviews”). If you choose to provide Reviews you agree that you will not create Reviews for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Service and: (1) you should have firsthand experience with respect to your Reviews; (2) your Reviews should not contain: offensive language, profanity, or abusive, racist, or hate language; discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation or disability; or references to illegal activity; (3) you should not provide Reviews if you are affiliated with the subject Restaurant’s competitors if posting negative opinions; and (4) your Reviews should not make any conclusions as to the legality of the Restaurant’s conduct, including allegations of health code violations. Zesty may accept, reject or remove your Reviews in our sole discretion. Zesty has no obligation to screen Reviews or to delete Reviews, even if a Restaurant or anyone considers Reviews objectionable or inaccurate, or if Reviews violate this Agreement. Reviews are not endorsed by Zesty, and do not represent the views of Zesty or of any affiliate or partner of Zesty. Zesty does not assume liability for any Review or for any claims, liabilities or losses resulting from any Review. You understand and agree that regardless of terminology used, Reviews represent a limited license right governed solely by the terms of this Agreement and available for distribution at Zesty’s sole discretion. You acknowledge that you do not own the account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Zesty on Zesty servers, including without limitation any data representing or embodying any or all of the Reviews that are associated with your Customer account. You agree that Zesty has the absolute right to manage, regulate, control, modify and/or eliminate Reviews as it sees fit in its sole discretion, in any general or specific case, and that Zesty will have no liability to you based on its exercise of such right. All data on Zesty’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, REVIEWS, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON ZESTY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN ZESTY’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. ZESTY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE ATTRIBUTED TO ANY DATA RESIDING ON ZESTY’S SERVERS.
Zesty cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
9. DMCA Notice
Since we respect artist and content owner rights, it is Zesty’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Zesty’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Service;
Information reasonably sufficient to permit Zesty to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice, Zesty, Inc.
277 Carolina St,
San Francisco, CA 94103
Tel: (800) HEY-ZESTY
Fax: (530) 762-1625
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Zesty and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Zesty’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Zesty has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Zesty may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
10. Third-Party Links
You agree to defend, indemnify and hold harmless Zesty and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising out or related to: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties herein; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any other information or content that is submitted via your account, including without limitation misleading, false or inaccurate dietary information, nutritional information or allergen-related information; (vi) negligence or willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
12. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZESTY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
ZESTY RELIES UPON RESTAURANTS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION. ZESTY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE INCLUDING WITHOUT LIMITATION MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD DESCRIPTIONS, PRICING, HOURS OF OPERATION, PARKING ACCESSIBILITY OR REVIEWS. CONTENT PROVIDED THROUGH THE SERVICE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS PROFESSIONAL MEDICAL ADVICE. NO ACTION SHOULD BE TAKEN BASED UPON ANY INFORMATION CONTAINED IN THE SERVICE. YOU SHOULD SEEK INDEPENDENT PROFESSIONAL ADVICE FROM A PERSON WHO IS LICENSED AND/OR QUALIFIED IN THE APPLICABLE AREA. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING WITHOUT LIMITATION NUTRITIONAL AND ALLERGEN INFORMATION.
ZESTY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE ZESTY SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND ZESTY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ZESTY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL ZESTY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM USE OF THE SERVICE OR THE INFORMATION PROVIDED THROUGH THE SERVICE, FROM THE USE OF YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN, OR FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZESTY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED ON SERVERS; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL ZESTY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO ZESTY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ZESTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. Zesty makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
14. Governing Law and Arbitration.
A. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Zesty, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
B. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ZESTY. In the unlikely event that Zesty has not been able to resolve a dispute it has with you after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any Air Computing claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms of Service, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the Judicial Mediation and Arbitration Services (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com and may require you to pay a fee for the initiation of your case unless you apply for and successfully obtain a fee waiver from JAMS. The arbitration will be conducted in Santa Clara County, California (or the nearest JAMS office), unless you request an in-person hearing in your hometown or you and Zesty agree otherwise. The award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees and your reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the court as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights or other proprietary rights. You may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS TERMS OF SERVICE, YOU AND ZESTY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, .COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
A. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Zesty without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
B. Notification Procedures and Changes to the Agreement. Zesty may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Zesty in our sole discretion. Zesty reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Zesty is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Zesty may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the bottom of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Customer Terms of Service. If you do not agree to any of these terms or any future Customer Terms of Service, do not use or access (or continue to access) the Service.
C. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Zesty in connection with the Service, shall constitute the entire agreement between you and Zesty concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
D. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Zesty’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
E. Government Use Rights. If the Service is licensed to the United States government or any agency thereof, then the Service will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service.
F. Contact. Please contact us at email@example.com with any questions regarding this Agreement.
This Agreement was last modified on November 3, 2013.