1. Using Zappen
a. Who can use Zappen
You may use our Products only if you can form a binding contract with Zappen, and only in compliance with these Terms and all applicable laws. When you create your Zappen account, you must provide us with accurate and complete information. Any use or access by anyone under the age of 13 is prohibited. If you open an account on behalf of a company, organization, or other entity, then (a) "you" includes you and that entity, and (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity's behalf. Some of our Products may be software that is downloaded to your computer, phone, tablet, or other device. You agree that we may automatically upgrade those Products, and these Terms will apply to such upgrades.
b. Our license to you
Subject to these Terms and our policies (including our Acceptable Usage Policy), we grant you a limited, non-exclusive, non-transferable, and revocable license to use our Products.
c. Commercial use of Zappen
If you want to use our Products for commercial purposes you must create a business account and agree to our Business Terms of Service.
2. Your Content
a. Posting content
Zappen allows you to post content, including photos, comments, links, and other materials. Anything that you post or otherwise make available on our Products is referred to as "User Content." You retain all rights in, and are solely responsible for, the User Content you post to Zappen.
b. How Zappen and other users can use your content
You grant Zappen and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute your User Content on Zappen solely for the purposes of operating, developing, providing, and using the Zappen Products. Nothing in these Terms shall restrict other legal rights Zappen may have to User Content, for example under other licenses. We reserve the right to remove or modify User Content for any reason, including User Content that we believe violates these Terms or our policies.
c. How long we keep your content
Following termination or deactivation of your account, or if you remove any User Content from Zappen, we may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes. Furthermore, Zappen and its users may retain and continue to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute any of your User Content that other users have stored or shared through Zappen.
d. Feedback you provide
We value hearing from our users, and are always interested in learning about ways we can make Zappen better. If you choose to submit comments, ideas or feedback, you agree that we are free to use them without any restriction or compensation to you. By accepting your submission, Zappen does not waive any rights to use similar or related Feedback previously known to Zappen, or developed by its employees, or obtained from sources other than you
3. Copyright Policy
Zappen observes the terms of the Digital Millennium Copyright Act.
We care about the security of our users. While we work to protect the security of your content and account, Zappen cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account.
5. Third-Party Links, Sites, and Services
Our Products may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Zappen. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access any third party website, service, or content from Zappen, you do so at your own risk and you agree that Zappen will have no liability arising from your use of or access to any third-party website, service, or content.
Zappen may terminate or suspend this license at any time, with or without cause or notice to you. Upon termination, you continue to be bound by Sections 2 and 6-12 of these Terms.
We reserve the right to refuse service to anyone.
If you use our Products for commercial purposes in violation of Section 1(c), as determined in our sole and absolute discretion, you agree to indemnify and hold harmless Zappen and its officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), in any way related to (a) your access to or use of our Products, (b) your User Content, or (c) your breach of any of these Terms.
The Products and all included content are provided on an "as is" basis without warranty of any kind, whether express or implied.
ZAPPEN SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
Zappen takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or transmits using our Products. 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.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ZAPPEN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE PRODUCTS; (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; OR (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL ZAPPEN'S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE PRODUCTS EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00).
For any dispute you have with Zappen, you agree to first contact us and attempt to resolve the dispute with us informally. If Zappen has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration by the American Arbitration Association ("AAA") under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Unless you and Zappen agree otherwise, the arbitration will be conducted in the county where you reside. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, except that Zappen will pay for your reasonable filing, administrative, and arbitrator fees if your claim for damages does not exceed $75,000 and is non-frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and 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 courts for matters related to data security, intellectual property or unauthorized access to the Service. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ZAPPEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
11. Governing Law and Jurisdiction
These Terms shall be governed by the laws of the State of Massachusetts, without respect to its conflict of laws principles.
Our Products are controlled and operated from the United States, and we make no representations that they are appropriate or available for use in other locations.
12. General Terms
Notification Procedures and changes to these Terms. Zappen reserves the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if we so choose. We may revise these Terms from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material we will notify you. By continuing to access or use the Products after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Products.
Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Zappen without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Zappen's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.