ZOOMTENS
TERMS OF USE
Last modified July 7, 2014
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ZOOMTENS (“ZOOMTENS”). YOU SHOULD CAREFULLY READ THIS AGREEMENT, AND THE ZOOMTENS PRIVACY POLICY (the “Privacy Policy”), WHICH IS INCORPORATED INTO, A PART OF, AND GOVERNED BY THIS AGREEMENT. ZOOMTENS PROVIDES AN ONLINE INFORMATION SERVICE, SUBJECT TO YOUR AGREEMENT TO ALL OF THESE TERMS AND CONDITIONS. THIS AGREEMENT GOVERNS YOUR USE OF THE ZOOMTENS WEBSITE AT WWW.ZOOMTENS.COM AND ANY RELATED SUBDOMAINS (THE “SITE”) AND THE SERVICES, FEATURES, AND INFORMATION AVAILABLE ON THE SITE (TOGETHER WITH THE SITE, ALONG WITH ASSOCIATED AND SUCCESSOR WEBSITES, FEATURES, INFORMATION, AND SERVICES, OR ANY PART THEREOF, THE “SERVICE”). THE SERVICE MAY BE ACCESSED DIRECTLY THROUGH THE SITE OR THROUGH FACEBOOK, TWITTER, AND OTHER ONLINE CHANNELS. BY USING OR ACCESSING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE.
- Changes to this Agreement. ZOOMTENS reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement (including the Privacy Policy, which is incorporated into, a part of, and governed by this Agreement) at any time, effective with or without prior notice; provided, however, that ZOOMTENS will provide you with notification of any material changes (as determined in ZOOMTENS’s sole and absolute discretion) by email, postal mail, website posting, pop-up screen, or in-service notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must immediately stop using the Service. Your continued use of the Service following any revision to this Agreement constitutes your complete acceptance of any and all such changes.
- No Endorsement. The Service and the entire contents of the Service (including without limitation, material on the Service’s blogs, member communities, and learning center and material created via the Service) (the “Content”) is provided for informational purposes only. Any information provided to you by ZOOMTENS as a result of your participation in the Service is being provided to you solely for your educational and informational benefit. In creating the Content, including without limitation any rankings, ZOOMTENS relies on third-party sources that ZOOMTENS has not vetted. Your reliance on the Service or the Content is at your own risk. ZOOMTENS does not endorse or warranty any educational or product, service, opinion, or other information that may be referenced on or through the Service.
- Access to the Service.
3.1. Subject to your acceptance of and compliance with this Agreement, ZOOMTENS grants to you a non-exclusive, non-transferable, revocable limited license to use the Service for your personal non-commercial use. You agree not to use the Service for any other purpose, or to download, save, copy or distribute the Content except as specifically allowed in this Agreement.
3.2. ZOOMTENS may change, modify, suspend, or discontinue any aspect of the Service at any time. ZOOMTENS may also impose limits on certain features or restrict or prohibit your access to parts or all of the Service without notice or liability.
3.3. You agree to be bound by any application- or content-specific rules published within the Service.
3.4. Your use of the Service is conditioned upon your compliance with this Agreement; any use of the Service in violation of this Agreement will be regarded as an infringement of ZOOMTENS’s copyrights in and to the Service. ZOOMTENS reserves the right to terminate your access to the Service without notice if you violate this Agreement or for any reason at ZOOMTENS’s discretion.
3.5. The Service is intended for individuals at least 13 years old. If you are under the age of 13 you are prohibited from using the Service. Additionally, if you are between the ages of 13 and 18, you represent that your legal guardian has reviewed and agrees to be bound by this Agreement on your behalf.
4. Registration and Subscription. At this time, there is no subscription cost to be able to participate on or use the Service.
5. Ownership of Intellectual Property.
5.1. Unless otherwise specified in writing, all materials that are part of the Service are owned, controlled, or licensed by ZOOMTENS and are protected by law from unauthorized use. The entire contents of the Service are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. ZOOMTENS and the ZOOMTENS logos are trademarks of ZOOMTENS and may not be used without the express written permission of ZOOMTENS.
5.2. You do not acquire any ownership rights by using the Service or downloading material from or uploading material to the Service.
5.3. You agree not to copy, redistribute, publish or otherwise exploit material from the Service, except as expressly permitted herein, without the express prior written permission of ZOOMTENS.
5.4. You hereby grant to ZOOMTENS an unlimited, non-exclusive, worldwide, perpetual, irrevocable, royalty-free license, with unlimited sublicensing rights, to use all comments, feedback, blog or forum statements, suggestions, ideas, and other submissions disclosed, submitted, or offered to ZOOMTENS in connection with your use of the Service, including without limitation by email to ZOOMTENS (collectively, “Submissions”) in any manner whatsoever ZOOMTENS may desire, including, but not limited to, to make, have made, use, sell, offer to sell, import, reproduce, modify, create derivative versions of, distribute, publicly display and publicly perform such Submissions, in any and all forms and media now known or hereafter devised. Without limitation of the foregoing, you agree that unless otherwise prohibited by law ZOOMTENS may use, sell, exploit, disclose, revise, and delete the Submissions in any manner, including any public manner, without restriction, without compensation to you, and with or without identifying you as the creator of the Submissions. You represent and warrant that any Submissions are your original creations, that you have all rights to the Submissions, and that the Submissions do not infringe or violate the rights of any party, including without limitation any intellectual property rights or rights or privacy or publicity.
5.5. Community Areas. If you use a community area of the Service, such as blogs, forums, or other public areas or member communities, you are solely responsible for your own Submissions, the consequences of posting your Submissions, and your reliance on any information in the community areas or other areas of the Service. Any information you share, including without limitation any discussions with others, in any online community area is by design open to the public and is not private. In the event that you feel threatened or believe that someone else is in danger, you should contact your local law enforcement agency immediately. The ZOOMTENS Parties (as defined herein) reserve the right to, but shall not be obligated to, record any dialogue or exchanges in the community areas of the Service. The ZOOMTENS Parties shall have no responsibility for any actions taken, or failures to take action, with respect to the community areas of the Service or any Submissions. As with any public forum on any website, the information you post may show up in third-party search engine results.
6. Usage Rules. As a condition of your use of and access to the Service, you agree to comply with any application- or content-specific rules published within the Service as well as the following usage rules, which are provided as an example rather than as a limitation. You agree that your activities on the Service will not:
(a) copy or adapt the Service’s software including but not limited to Flash, PHP, HTML, Java, CSS, JavaScript or other code;
(b) reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that the Service create to generate web pages or any software or other products or processes accessible through the Service;
(c) use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or “bot”), cheat utility, scraper or offline reader that accesses the Service, or use or launch any unauthorized script or other software;
(d) distribute any virus, time bomb, trap door, or other harmful or disruptive computer code, mechanism or program;
(e) cover or obscure any notice, banner or advertisement on the Service;
(f) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service;
(g) sell the Service or any part thereof including but not limited user accounts and access to them in exchange for real currency or anything of value; violate any applicable law;
(h) harvest or otherwise collect information about others, including email addresses, without their identification for posting or viewing Submissions;
(i) infringe or violate the rights of any other party, including without limitation any intellectual property rights or rights of privacy or publicity;
(j) be obscene, offensive, pornographic, fraudulent, deceptive, defamatory, threatening, harassing, abusive, slanderous, hateful, or cause embarrassment to any other person as determined by ZOOMTENS in its sole discretion;
(k) further any chain letters or pyramid schemes;
(l) deliberately mislead anyone as to your identity, impersonate another, or falsely identify the source of any Submissions;
(m) allow another person or entity to use your identity in order to access the Service or post or view Submissions;
(n) post the same Submission more than once, transmit unsolicited messages, or engage in “spam”;
(o) engage in conduct deemed by ZOOMTENS to be in conflict with the spirit or intent of the Service, including without limitation, by disrupting the flow of dialogue in a public area, posting comments that are not related to the topic being discussed, restricting any other user from using or enjoying the Service, or exposing ZOOMTENS or another to any liability or detriment of any kind; or
(p) violate the terms of service of Facebook, Twitter, or other online channel by which you access the Service.
7. Privacy and Protection of Personal Information. ZOOMTENS respects the privacy of visitors to and users of the Service. Information collected from you is subject to ZOOM TENS’s Privacy Policy. If you access the Service through Facebook, Twitter, or other online channel, you may be allowing Facebook, Twitter, or such other online channel, respectively, to share your email address and any other personally identifiable and non-personally identifiable information with ZOOMTENS. Please see ZOOMTENS’s Privacy Policy for more information on the collection and use of your information. You acknowledge and agree that the ZOOMTENS Privacy Policy, including, but not limited to, the manner in which ZOOMTENS collects, uses and discloses your personally identifiable information and non-personally identifiable information, is incorporated and made part of this Agreement. By accepting this Agreement, you agree to all of the terms of the ZOOMTENS Privacy Policy. If you do not agree to the ZOOMTENS Privacy Policy, then you may not use the Service.
8. Child Online Protection Act Notification. Pursuant to 47 U.S.C. § 230(d) as amended, ZOOMTENS hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying providers of such protection is available on the websites StaySafeOnline (http://staysafeonline.org/stay-safe-online/), GetNetWise (http://kids.getnetwise.org/), and OnGaurdOnline (http://www.onguardonline.com/). Please note that ZOOM TENS is not affiliated with the above listed sites, nor is the above intended as an endorsement of any of the products or services listed on such sites.
9. Disclaimers; Limitations; Waivers of Liability.
9.1. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER THE LAWS APPLICABLE TO TERMS OF USE WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER ZOOMTENS NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “ZOOM TENS PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, UNCORRUPTED, TIMELY, OR ERROR-FREE.
9.2. THE ZOOMTENS PARTIES FURTHER MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR THE CONTENT WILL BE ACCURATE, RELIABLE, COMPLETE, CURRENT, OR TIMELY.
9.3. ZOOMTENS DOES NOT ENDORSE OR WARRANTY PRODUCT, SERVICE, OPINION, OR OTHER INFORMATION THAT MAY BE REFERENCED ON OR THROUGH THE SERVICE. THE SERVICE HEREUNDER IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY.
9.4. THE ZOOMTENS PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, THE USE OR MISUSE OF SUBMISSIONS OR CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, WHETHER OR NOT THE ZOOM TENS PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, UNDER NO CIRCUMSTANCES WILL THE ZOOM TENS PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID ZOOM TENS IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
9.5. TO THE FULLEST EXTENT PERMITTED BY LAW, THESE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
10. Release. You forever release, discharge, and covenant not to sue the ZOOMTENS Parties from any and all liability, claims, actions, and expenses that may arise, whether caused by the negligence of the ZOOMTENS Parties, or otherwise, in connection with your use of the Service or your interaction with any party through or as a result of the Service. In other words, you agree that you cannot sue the ZOOMTENS Parties if anything happens to you or your property in connection with your use of the Service or your interaction with any party through or as a result of the Service. You agree that the provisions in this paragraph will survive any termination of your account(s), the Service, or this Agreement.
11. Indemnification. You agree to defend, indemnify and hold harmless the ZOOM TENS Parties from and against all liability, claims, actions, and expenses, including attorneys’ fees and costs, arising out of your use of the Service and/or your breach or alleged breach of any term, condition, obligation, representation or warranty in this Agreement. You agree that the provisions in this paragraph will survive any termination of your account(s), the Service, or this Agreement.
12. Objectionable Content/Copyright Takedown: If you believe your rights have been violated by, or you otherwise object to, any posting, content or information on the Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your complaint includes a claim of copyright infringement, the following policy will apply:
Copyright Policy: It is ZOOMTENS’s policy to respond promptly to claims of copyright infringement, and to remove, or disable access to, infringing material. If you believe that any of the content or materials appearing on this Service contain infringements, please send a notice to the individual and address stated below. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. ZOOMTENS will also terminate a subscriber’s account if a subscriber is deemed to be a repeat infringer, namely, one who has been notified of bona fide infringing activity more than twice. Our designated agent, to whom you should email your infringement claim (or other complaints), is Jackson Summer, whose web email is [email protected]
13. Third Party Sites and Products. We may include links to third-party sites or services, or information about third-party products or services. You should review the terms of use and privacy policies of all sites and services you link to from or are referred to by our Service. We do not endorse or take responsibility for these third party offerings. We do not vet or take responsibility for third-party sites, services or products or the postings or communications of other users.
14. Governing Law/Waiver of Injunctive Relief.
14.1. This Agreement and all aspects of the Service will be governed by and construed in accordance with the internal laws of the United States and the Commonwealth of Massachusetts governing contracts entered into and to be fully performed in Massachusetts (i.e., without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state or federal courts located in Boston, Massachusetts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Boston, Massachusetts.
14.2. You acknowledge that the rights granted and obligations made hereunder to ZOOMTENS are of a unique and irreplaceable nature, the loss of which will irreparably harm ZOOMTENS and which cannot be replaced by monetary damages alone so that ZOOMTENS will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
14.3. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and ZOOM TENS agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to [email protected] with the subject line reading ATTENTION: LEGAL DEPARTMENT.
14.4. If you and ZOOMTENS are unable to resolve a Dispute through informal negotiations within 30 days, either you or ZOOMTENS may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and ZOOMTENS may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
14.5. You and ZOOM TENS agree that any arbitration will be limited to the Dispute between ZOOMTENS and you individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
14.6. You and ZOOMTENS agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or ZOOMTENS’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief.
15. Waiver/Severability.
15.1. The failure of ZOOMTENS to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under them will not be construed as a waiver or relinquishment of ZOOMTENS’s right to assert or rely upon any such provision or right in that or any other instance.
15.2. You and ZOOMTENS agree that if any portion of this Agreement, except any portion of Section 15.6, is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which will continue to be in full force and effect. If Section 15.6 is found to be illegal or unenforceable then neither you nor ZOOMTENS will elect to arbitrate any Dispute falling within that portion of Section 15.6 found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Boston, Massachusetts, and you and ZOOMTENS agree to submit to the personal jurisdiction of that court.
16. Miscellaneous. ZOOM TENS operates and controls the Service from its offices in the United States. ZOOMTENS makes no representation that the Service is appropriate or available in other locations. The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject ZOOMTENS to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Service from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. This Agreement is effective until terminated by either party. You may terminate this Agreement by destroying all Service-related materials obtained from the Service, ZOOMTENS or any other website or source. The privileges granted to you under this Agreement, including without limitation access to the Service directly or through Facebook, Twitter, or other online channel, will terminate immediately and automatically without notice from ZOOMTENS if, in our sole discretion, you fail to comply with any term or provision of this Agreement or for any reason in ZOOMTENS’s sole discretion. Following the termination of this Agreement, your account(s), or the Service, ZOOMTENS shall retain all rights to the Submissions pursuant to this Agreement. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement to any party at any time without any notice to you. You may not assign this Agreement without ZOOMTENS’s prior written consent. This Agreement contains the entire understanding of you and ZOOMTENS, and supersedes all prior understandings between the parties concerning its subject matter, and cannot be changed or modified by you. The section headings used in this Agreement are for convenience only and will not be given any legal import. Upon ZOOMTENS’s request, you will furnish ZOOMTENS any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against ZOOMTENS by virtue of having drafted it. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
17. Statute of Limitations. You and ZOOMTENS both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement (including the Privacy Policy) must be filed within ONE (1) YEAR after such claim or cause of action arose or will be forever barred.
