1. AGREEMENT TO TERMS
1.1. The ZoneSmart branded and related services are provided by Zonesmart Distribution LLC, a Delaware limited liability company ("ZoneSmart") through the ZoneSmart Website (the "Site") https://zonesmart.com
(and its subdomains) and/or https://zonesmart.ru
to you ("you" or "User"). This Terms of Service Agreement ("Agreement") is entered into by and between ZoneSmart and you, and is made effective as of the date of your use of this website or the date of electronic acceptance.
1.2. Please note, that this Terms of Service Agreement does not apply if you are a business customer (either in Russia and have contract payments set as a method of payment. As long as you use wire transfers as a method of payment, you agree to the Terms of Service published at https://www.zonesmart.ru/russia_terms
and contract with another entity. The Terms of Service accessible under this link apply to the services paid via wire transfers. Services paid via credit or debit card are governed by this Terms of Service Agreement.
1.4. The terms "we", "us" or "our" shall refer to ZoneSmart. The terms "you", "your", "User" or "customer" shall refer to any individual or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
1.5. By visiting this Site and/or by completing the registration process for the Services, you represent and warrant that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by this Agreement
1.6. By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognised as being able to form legally binding contracts under applicable law, or (iii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction.
1.7. If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", "User" or "customer" shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, ZoneSmart finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. ZoneSmart shall not be liable for any loss or damage resulting from ZoneSmart's reliance on any instruction, notice, document or communication reasonably believed by ZoneSmart to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, ZoneSmart reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.2. MODIFICATION OF AGREEMENT, SITE, OR SERVICES
2.1. ZoneSmart may, in its sole and absolute discretion, change or modify this Agreement at any time, and such changes or modifications shall be effective immediately upon posting on the Site. Your use of the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) the Services. It is therefore very important that you keep your Account information current. ZoneSmart assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, ZoneSmart may terminate your use of Services for any violation or breach of any of the terms of this Agreement by you. ZoneSmart RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THIS SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME.3. YOUR REGISTRATION OBLIGATIONS
3.1. To obtain and use the Services, you will be required to register with ZoneSmart by completing a registration form and designating a user ID and password. When registering with ZoneSmart, you agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
3.2. You may not authorize any third party to access or use the Services on your behalf. You are responsible for maintaining the confidentiality of the user ID and password, and solely responsible for the activity that occurs on your account, whether authorized by you or not, and you must keep your account information secure. You agree to immediately notify ZoneSmart of any unauthorized use of your user ID or password or any other breach of security. ZoneSmart cannot and will not be liable for any loss or damage arising from any unauthorized use of your account.4. GENERAL RULES OF CONDUCT
4.1. You acknowledge and agree that:
i. Your use of this Site and the Services, including any content you submit, will comply with this Agreement, any applicable Services Agreement or policy that may apply to your Services and all applicable local, state, national and international laws, rules and regulations.
ii. You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
iii. You will not use this Site or the Services in a manner (as determined by ZoneSmart in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity;
- Promotes, encourages or engages in the exploitation of children, or any activity related to the proliferation of child sexual abuse material (CSAM);
- Promotes, encourages or engages in terrorism, violence against people, animals, or property;
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking;
- Infringes on the intellectual property rights of another User or any other person or entity;
- Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
- Interferes with the operation of this Site or the Services found at this Site;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
- Contains false or deceptive language, or unsubstantiated or comparative claims, regarding ZoneSmart or ZoneSmart's Services.
iv. You will not copy or distribute in any medium any part of this Site or the Services, except where expressly authorized by ZoneSmart.
v. You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
vi. You will not access ZoneSmart Content (as defined below) or User Content through any technology or means other than through this Site itself, or as ZoneSmart may designate.
vii. You agree to back-up all of your User Content so that you can access and use it when needed. ZoneSmart does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
viii. You will not re-sell or provide the Services for a commercial purpose, including any of ZoneSmart's related technologies, without ZoneSmart's express prior written consent.
ix. You will not to circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any ZoneSmart Content or User Content) or enforce limitations on the use of this Site or the Services found at this Site, the ZoneSmart Content or the User Content therein.
x. You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
xi. You are aware that ZoneSmart may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether ZoneSmart asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which ZoneSmart is a party.
Further, by providing your telephone or mobile number, you consent to receive marketing telephone calls from or on behalf of ZoneSmart that may be initiated by an automatic telephone dialing system and/or use an artificial or prerecorded voice. You understand that providing consent is not a condition of purchasing any good or service from ZoneSmart. Similarly, by providing your mobile number, you consent to receive marketing text messages from or on behalf of ZoneSmart that may be sent by an automatic telephone dialing system. You understand that providing consent is not a condition of purchasing any good or service from ZoneSmart. Message and data rates may apply.
xii. Without limiting any of the rights set forth elsewhere in this Agreement, ZoneSmart expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to this Site or any Services to any User (i) whose Account or Services were previously terminated or suspended, whether due to breach of this or any other Agreement or any ZoneSmart policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Site or Services (as determined by ZoneSmart in its sole and absolute discretion). 5. USER CONTENT
5.1. Some of the features of this Site or the Services may allow Users to view, post, publish, share, store, or manage literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, "User Content"). All content submitted through your Account is considered User Content. By posting or publishing User Content to this Site or to or via the Services, you represent and warrant to ZoneSmart that (i) you have all necessary rights to distribute User Content via this Site or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
5.2. To the extent that the Services provide Users an opportunity to retrieve and send inventory and order information from User's marketplace accounts, you hereby represent and warrant that you have all necessary rights in and to all User Content you provide and all information contained therein. By registering to use the Services, you understand and acknowledge that ZoneSmart and its contractors retain an irrevocable, royalty-free, worldwide license to use, copy, and publicly display such content for the sole purpose of providing to you the Services for which you have registered. In the event that you give ZoneSmart the right to distribute your content, additional terms may apply to ZoneSmart's usage or distribution of this content. You continue to retain all ownership rights in any User Content you provide and shall remain solely responsible for your conduct, your User Content, and any material or information transmitted to other Users for interaction with other Users.6. AVAILABILITY OF WEBSITE/SERVICES
6.1. Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
6.2. Free Trial. The Service Free Trial ("Free Trial") is an opportunity for you to use the Service free of charge for any specified term, beginning on the date that you accept the Free Trial offer. The Free Trial will expire at the end of the specified trial period, regardless of whether or not you use the Service during the Free Trial period.
6.3. We may withdraw or modify the Free Trial, or exchange the Service or offer for a similar service or offer, at any time, in our sole discretion. You will be charged then-current rates for the Service if we determine that you are not eligible for the Free Trial
6.4. Upon expiration of the Free Trial, you will not be charged and the Service will renew into the Free Service plan. However, if you upgrade to a paid plan and provide a future payment method during or at the end of your Free Trial, the Service will automatically renew at its then-current renewal price with no further action from you, until cancelled. You may cancel the Free Trial or the automatic renewal of the Service at any time prior to the end of the Free Trial by visiting your account and selecting the "cancel" link. . If you choose to cancel Free Trial, any content or data you have entered into the service will only be retained for 60 days from the date of cancellation for customers with billing addresses in non-GDPR countries or 30 days from the date of cancellation for customers with billing addresses in GDPR countries.
6.5. Residents of certain countries may not be eligible to participate in a Free Trial offer. 7. MONITORING OF CONTENT; ACCOUNT TERMINATION POLICY
7.1. ZoneSmart generally does not pre-screen User Content. However, ZoneSmart reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. ZoneSmart may remove any item of User Content and/or terminate a User's access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by ZoneSmart in its sole and absolute discretion), at any time and without prior notice. ZoneSmart may also terminate a User's access to this Site or the Services found at this Site if ZoneSmart has reason to believe the User is a repeat offender. If ZoneSmart terminates your access to this Site or the Services found at this Site, ZoneSmart may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers. 8. DISCONTINUED SERVICES; END OF LIFE POLICY
8.1. ZoneSmart reserves the right to cease offering or providing any of the Services at any time, for any or no reason, and without prior notice. Although ZoneSmart makes great effort to maximize the lifespan of all its Services, there are times when a Service we offer will be discontinued or reach its End-of-Life ("EOL"). If that is the case, that product or service will no longer be supported by ZoneSmart, in any way, effective on the EOL date.
8.2. Notice and Migration. In the event that any Service we offer has reached or will reach EOL, we will attempt to notify you thirty or more days in advance of the EOL date. It is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, ZoneSmart will either offer a comparable Service for you to migrate to for the remainder of the term of your purchase, a prorated in-store credit, or a prorated refund, to be determined by ZoneSmart in its sole and absolute discretion. ZoneSmart may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
8.3. No Liability. ZoneSmart will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services we may offer. 9. TRADEMARK AND/OR COPYRIGHT CLAIMS
9.1. ZoneSmart supports the protection of intellectual property. If you would like to submit (i) a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which you hold a bona fide copyright, please contact us at email@example.com. 10. THIRD PARTY CONTENT, SITES, AND SERVICES
10.1. All transactions using ZoneSmart's services are between the transacting parties only. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. We may also provide some content to you as part of the Services. However, ZoneSmart is not an agent of any transacting party, nor are we a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third-party content you access with the Services, and you irrevocably waive any claim against us with respect to such sites and third-party content. ZoneSmart shall have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between you and any such third-party. You are solely responsible for investigating before proceeding with any online or offline transaction with any third party. You are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third-party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we disclaim all liability. 11. FEES AND PAYMENTS; AUTOMATIC RENEWAL
11.1. The fees applicable for ZoneSmart service are available at https://zonesmart.com/pricing
and as published within the Services.
11.2. Unless specifically agreed upon in writing between User and ZoneSmart at the commencement of a subscription term, at the conclusion of any service term, whether monthly, every six months, yearly, or otherwise, ZoneSmart will automatically renew the service for the same term and will charge the user's credit or debit card on the first day of the renewal term.
11.3. Payments for all accounts are due within 30 days of billing date. The last day of the free trial signifies the due date of first payment.
11.4. If payment is not received by the end of the given 30 day time period, user's account will be frozen and inaccessible until all outstanding payments have been processed by ZoneSmart. Users retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. If not complied with, at the end of 90 days, user's account will be deactivated and all data will no longer be retrievable.
11.5. Price Changes. ZoneSmart reserves the right to change its prices and fees at any time, and such changes shall be posted online at this Site and effective immediately without need for further notice to you. If you have purchased or obtained Services for a period of months or years, changes in prices and fees shall be effective when the Services in question come up for renewal as further described below.
11.6. Auto-Renewal Terms. In order to ensure that you do not experience an interruption or loss of Services, all Services are offered on automatic renewal. Except for reasons described below in this section, automatic renewal automatically renews the applicable Service upon expiration of the current service period. For example, if your last service period is for one year, your renewal period will typically be for one year. However, in the event renewal with the Payment Method on file fails, ZoneSmart may attempt to renew the applicable service for a period less than the original subscription period to the extent necessary for the transaction to succeed.
11.7. Unless you disable the automatic renewal option, ZoneSmart will automatically renew the applicable Service when it comes up for renewal and will take payment from any Payment Method you have on file with ZoneSmart at ZoneSmart'S then current rates, which you acknowledge and agree may be higher or lower than the rates for the original service period. If you do not wish for any Service to automatically renew, you may elect to cancel renewal, in which case, your Services will terminate upon expiration of the then current term, unless you manually renew your Services prior to that date (in which case the Services will again be set to automatic renewal). In other words, should you elect to cancel your product and fail to manually renew your Services before they expire, you may experience an interruption or loss of Services, and ZoneSmart shall not be liable to you or any third party regarding the same. 12. ADDITIONAL RESERVATION OF RIGHTS
12.1. ZoneSmart expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services for any reason (as determined by ZoneSmart in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by ZoneSmart in offering or delivering any Services, (ii) to protect the integrity and stability of, and correct mistakes made by, any third party (iii) to assist with our fraud and abuse detection and prevention efforts, (iv) to comply with court orders against you and/or your domain name or website and applicable local, state, national and international laws, rules and regulations, (v) to comply with requests of law enforcement, including subpoena requests, (vi) to comply with any dispute resolution process, (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, (viii) to avoid any civil or criminal liability on the part of ZoneSmart, its officers, directors, employees and agents, as well as ZoneSmart's affiliates, including, but not limited to, instances where you have sued or threatened to sue ZoneSmart, or (ix) to respond to an excessive amount of complaints related in any way to your Account, domain name(s), or content on your website that could result in damage to ZoneSmart's business, operations, reputation or shareholders.
12.2 ZoneSmart expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels.
12.3. ZoneSmart expressly reserves the right to terminate, without notice to you, any and all Services where, in ZoneSmart's sole discretion, you are harassing or threatening ZoneSmart and/or any of ZoneSmart's employees.
12.4. ZoneSmart Content. Except for User Content, the content on this Site and the Services, including without limitation the text, software, scripts, source code, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein ("ZoneSmart Content"), are owned by or licensed to ZoneSmart in perpetuity, and are subject to copyright, trademark, and/or patent protection in the United States and foreign countries, and other intellectual property rights under United States and foreign laws. ZoneSmart Content is provided to you "as is", "as available" and "with all faults" for your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of ZoneSmart. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. ZoneSmart reserves all rights not expressly granted in and to the ZoneSmart Content, this Site and the Services, and this Agreement do not transfer ownership of any of these rights. 13. REFUND OF CHARGES
13.1. Except as specifically set forth in this section, all ZoneSmart services are prepaid for the period selected (monthly, yearly or otherwise) and are non-refundable. This includes accounts that are renewed in accordance with the previous section. 14. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
14.1. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". ZoneSmart, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ZoneSmart, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND ZoneSmart ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
14.2. IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY ZoneSmart, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
14.3. THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site. 15. LIMITATION OF LIABILITY
15.1. IN NO EVENT SHALL ZoneSmart, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, "X-RATED", OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT ZoneSmart IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2. IN ADDITION, You SPECIFICALLY ACKNOWLEDGE AND agree that in no event shall ZoneSmart's total aggregate liability exceed $10,000.00 U.S. Dollars.
15.3 THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site. 16. INDEMNITY
16.1 You agree to protect, defend, indemnify and hold harmless ZoneSmart and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys' fees) imposed upon or incurred by ZoneSmart directly or indirectly arising from (i) your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site. 17. COMPLIANCE WITH LOCAL LAWS
17.1. ZoneSmart makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations. 18. DISPUTES, BINDING INDIVIDUAL ARBITRATION AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.
(A) Disputes. The terms of this Section shall apply to all Disputes between you and ZoneSmart, except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced above and available here. For the purposes of this Section, "Dispute" shall mean any dispute, claim, or action between you and ZoneSmart arising under or relating to any ZoneSmart Services or Products, ZoneSmart's websites, these Terms, or any other transaction involving you and ZoneSmart, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND ZoneSmart AGREE THAT "DISPUTE" AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR ZoneSmart FOR (i) TRADE SECRET MISAPPROPRIATION, (ii) PATENT INFRINGEMENT, (iii) COPYRIGHT INFRINGEMENT OR MISUSE, AND (iv) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
(B) Binding Arbitration. You and ZoneSmart further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these Terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
(C) Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court's jurisdiction and is pending only in that court.
(D) Dispute Notice. In the event of a Dispute, you or ZoneSmart must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the "Dispute Notice"). The Dispute Notice to ZoneSmart must be addressed to: _______. The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If ZoneSmart and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or ZoneSmart may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
(E) WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND ZoneSmart AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR ZoneSmart WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OF PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
(F) Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association ("AAA") and governed by the Consumer Arbitration Rules of the AAA ("AAA Rules") in conjunction with the rules set forth in these Terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org
or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in Section 15 of this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of "Disputes" as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence (or principal place of business if you are a small business), or in Maricopa County, Arizona, at your option.
(G) Initiation of Arbitration Proceeding. If either you or ZoneSmart decide to arbitrate a Dispute, we agree to the following procedure:
i. Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at http://www.adr.org
("Demand for Arbitration: Consumer Arbitration Rules").
ii. Send one copy of the Demand for Arbitration to AAA by mail at American Arbitration Association Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043.
iii. Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
(H) Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by ZoneSmart or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ZoneSmart is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration. (I) Arbitration Fees and Payments.
i. Disputes involving $75,000 or less. ZoneSmart will promptly reimburse your filing fees and pay the AAA's and arbitrator's fees and expenses. If you reject ZoneSmart's last written settlement offer made before the arbitrator was appointed ("ZoneSmart's last written offer"), your dispute goes all the way to an arbitrator's decision (called an "award"), and the arbitrator awards you more than ZoneSmart's last written offer, ZoneSmart will:
(i) pay the greater of the award or $1,000;
(ii) pay twice your reasonable attorney's fees, if any; and
(iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and ZoneSmart agree on them. ii. Disputes involving more than $75,000. The AAA rules will govern payment of filing fees and the AAA's and arbitrator's fees and expenses. iii. Disputes involving any amount. In any arbitration you commence, ZoneSmart will seek its AAA or arbitrator's fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration ZoneSmart commences, ZoneSmart will pay all filing, AAA, and arbitrator's fees and expenses. ZoneSmart will not seek its attorney's fees or expenses from you in any arbitration. Fees and expenses are not included in determining the amount in dispute.
(J) Claims or Disputes Must be Filed Within One Year. To the extent permitted by law, any claim or dispute to which this Section applies must be filed within one year in small claims or in arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If not filed within one year, the claim or dispute will be permanently barred.
(K) 30-Day Opt-out Period. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION IN THIS DISPUTES SECTION, YOU MUST NOTIFY ZoneSmart BY E-MAILING LEGALOPTOUT@ZoneSmart.COM WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS (UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW). In the e-mail, you must provide your (a) first name, (b) last name (c) address, (d) phone number, and (e) account number(s) and state the following: "I wish to opt out of the arbitration provision contained in ZoneSmart's Terms of Service Agreement." By providing your information in the method above, you are opting out of the agreement to arbitrate contained in ZoneSmart's Terms of Service. Your opt-out request will only be valid if made within thirty (30) days of first accepting the Universal Terms of Service. In the event that you opt-out consistent with the procedure set forth above, all other terms shall contained herein shall continue to apply, including those related to the applicable governing law and the court(s) in which legal disputes may be brought.
(L) Amendments to this Section. Notwithstanding any provision in these Terms to the contrary, you and ZoneSmart agree that if ZoneSmart makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to ZoneSmart's address) in these Terms, ZoneSmart will notify you and you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current Terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments. (M) Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms. 19. SUCCESSORS AND ASSIGNS
19.1. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 20. NO THIRD-PARTY BENEFICIARIES
20.1. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. 21. U.S. EXPORT LAWS
21.1. This Site and the Services found at this Site are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control ("OFAC"), State Department, and other United States authorities (collectively, "U.S. Export Laws"). Users shall not use the Services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of the Services found at this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using this Site and the Services found at this Site, you agree to the foregoing and represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws (including "anti-boycott", "deemed export" and "deemed re-export" regulations). If you access this Site or the Services found at this Site from other countries or jurisdictions, you do so on your own initiative and you are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access this Site or the Services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site. 22. TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
22.1. The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law. 23. ENGLISH LANGUAGE CONTROLS
23.1. This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the "Agreement"), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. 24. CONTACT INFORMATION
24.1. If you have any questions about this Agreement, please contact us by email or regular mail at the following address:
1600 Johnson Way
New Castle, Delaware
United States, 19720