2. COMMUNICATIONS. When you visit the Website or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Website. 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. Other than personally identifiable information, any comments, materials, or letters sent by you to Company, including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), may be deemed by Company to be non-confidential and free of any claims of proprietary or personal rights. Company shall have no obligation of any kind with respect to such Received Materials, and Company will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, Company is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, without compensation or any other obligations to anyone, including you.
3. DESCRIPTION OF SERVICES AND PRODUCTS. Company may provide users with a free collection of services through the Website, which may include sharing features, chat features, message boards, polls, and surveys (collectively and individually, the “Services”). For purposes of clarity, the term “Services” includes all functionality made available through the Website, but do not include any other services to be rendered by ZEFR, which shall be agreed to in a separate contract executed by the parties. Any new features which augment or enhance the current Services, including the release of new features or products, is also governed by these Terms. Company reserves the right at any time to change or discontinue the Services with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension, or discontinuance of any of the Services.
4. ACCESS TO THE WEBSITE. You are responsible for obtaining access to the Services, which may require transacting with third parties, such as internet providers.
5. LICENSE AND SITE ACCESS. Company hereby grants you, subject to the Terms, a limited non-exclusive, non-sublicensable, non-transferable, license to use the Website and Services. You may not download any portion of the Website or use of any Services other than for your own personal use. You may not use any data mining, robots, or similar data gathering tools or otherwise exploit your access to the Services (including, without limitation, for any commercial purpose). You may not use any of the trademarks, logos, or other proprietary graphics without express written permission, which may denied in Company’s absolute discretion. Company’s logos, product, and service names are trademarks of Company. All other trademarks appearing on the Website or in connection with the Products or Services are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made. You may not attempt to disassemble, decompile, reverse engineer, or otherwise modify or attempt to access the software, related code, or any portion of the Services.
6. YOUR ACCOUNT AND DATA. You are responsible for maintaining the confidentiality of any account information, including your login and password, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Company reserves the right (but does not accept any obligation) to refuse service, terminate accounts, or remove or edit content in its sole discretion. You are also solely responsible for the accuracy and currency of the data entered into the Services under your user account. By way of example, and not limitation, you are solely responsible for the information you provide in connection with any Service.
7. LINKS. Company may provide links to other websites or resources. Because Company has no control over such sites and resources, you acknowledge and agree that Company is not responsible for the (i) availability or content of such external sites or resources, or (ii) the manner in which such external sites collect or use your information. You may create a link to the Website so long as the link does not portray Company or its products or services in a false, misleading, derogatory, otherwise offensive manner.
9. WARRANTY. Company warrants that the Website and software related thereto do not infringe the intellectual property rights of any third party and agree to hold you harmless and indemnify you with respect to any final judgment obtained by a third party based on a claim that the Services infringe on the intellectual property rights of such third party.
10. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9 OF THIS AGREEMENT, THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, ACCURACY, OR TRUTHFULNESS OF THE WEBSITE, THE SERVICES, OR ANY INFORMATION PROVIDED BY OR WITH RESPECT TO THE SERVICES, AND YOU AGREE TO HOLD COMPANY HARMLESS FROM AND AGAINST ANY SUCH CLAIMS. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE AND/OR DELIVERY OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in this Agreement are for your benefit only.
11. LIMITATION ON LIABILITY. IN NO EVENT WILL COMPANY, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES OR PRODUCTS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF $500.00. THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY.
12. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to the United Nations Convention on the International Sales of Goods. The Parties hereby irrevocably submit to the exclusive personal jurisdiction of the state and federal courts located in the State of California and waive any objection to venue therein.
13. ATTORNEY FEES. In case of an action to enforce any rights or conditions of the Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
14. ENTIRE AGREEMENT; AMENDMENT. The Terms are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
15. NON-WAIVER. No waiver of any provision of the Terms shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of the Terms shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
16. NO THIRD-PARTY BENEFICIARIES. Nothing in the Terms, express or implied, is intended to confer on any person, other than the parties to the Terms, any right or remedy of any nature whatsoever. Notwithstanding the foregoing, in the event of a dispute between a Service Requester and a Service Provider, these Terms shall be deemed binding on both parties.
17. SEVERABILITY; BINDING EFFECT. If any provision of the Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of the terms shall not be impaired. The Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.
18. FORCE MAJEURE. Company will not be liable for, or be considered to be in breach of or default under the Terms on account of, any delay or failure to perform as required by the Terms as a result of any cause or condition beyond Company’s reasonable control.
19. INDEMNIFICATION. You agree to defend, indemnify and hold Company harmless from and against any cost, expense, fee, judgment, ruling, allegation, governmental action, or claim, including attorney fees and court costs, related to (1) a claim brought by any third party that your use of the Website or Services infringes upon the intellectual property rights of any third party, (2) your breach of any of the provisions of the Terms, or (3) any claim based on an act or omission by you.
20. LINKING POLICY. If you link to this Website, we require that you follow these guidelines. You may link only to the home page, and the link must be in plain text, unless otherwise approved in writing by an authorized representative of Company. The link to this Website must not damage, dilute or tarnish the goodwill associated with any Company names and/or intellectual property, nor may the link create the false appearance that your website and/or organization is sponsored, endorsed by, affiliated and/or associated with Company. You may not “frame” this Website or alter its intellectual property or material in any other way. You may not link to the Website from a site that is unlawful, abusive, racist, indecent or obscene, that promotes violence or illegal acts, that is libelous, defamatory, scandalous, or inflammatory, or that is otherwise deemed inappropriate, as determined by Company in its sole discretion. You agree that if Company requests that you remove a link to the Website, which it may do in its sole and absolute discretion, you will do so immediately without charge to Company. If you fail to remove any such link immediately after request, you agree to pay Company’s costs incurred in enforcing this provision.
21. CHILD ONLINE PRIVACY PROTECTION ACT COMPLIANCE. The Child Online Privacy Protection Act (“COPPA”) restricts website operators from collecting or using any personal information from individuals under the age of 13. In order to comply with COPPA, we do not target children under 13, nor do we knowingly collect any information from children under 13 or allow plug-ins or other services to collect such information. By using any of the Services or posting any information about yourself, you warrant that you are at least 13 years old. In addition, you may not post any photos or other information about any individual who is under 13. If you become aware of any materials posted by or about a child under age 13, please notify us immediately.