Last updated March 31, 2009.
Welcome, and thank you for your interest in ZoozMobile&trade, Inc. (referred to as "we", "us" or "Zooz"). Zooz owns and operates web site properties located at www.myzoozbeat.com, www.zoozbeat.com, www.zoozmobile.com, www.zooztunes.com and elsewhere on the Internet (collectively referred to as the "Sites"), and also provides innovative software applications for the iPhone and iPod Touch platforms, including ZOOZbeat&trade, ZOOZbeat Lite&trade, ZOOZbeat Latin&trade, ZOOZcontrol&trade, and ZOOZtunes (the "Apps") (the Sites and Apps, together with any other products and services provided by Zooz, whether through the Sites or through third party sites or services by or on behalf of Zooz, are collectively referred to as the "Zooz Service").
NOTE TO CHILDREN UNDER 13 YEARS OF AGE: THE ZOOZ SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then please do not use the Zooz Service.
2.1. ABOUT THE ZOOZ SERVICE The Zooz Service allows you to unlock your musical expression and creative potential through a unique, gesture-based musical studio and an interactive, online community of other users. The Zooz Service includes, but may not be limited to, rhythmic beats and musical "stems" and background tracks and a variety of original instrument voices that Zooz owns and/or licenses from third parties (the "Building Blocks"), along with a unique and innovative studio interface that gives you a set of tools and features to compose and layer musical ideas on top of the Building Blocks by interacting with the device through touch, movement, and external audio input. In this way, the Zooz Apps allow you to create and record new works by combining the Building Blocks with your own movement and musical ideas. The Apps allow you to save your songs, listen to them, upload them to the Zooz Service, and allow other users to access them. Through the Zooz Service you can interact with the community of Zooz users and visitors, browsing, and sharing content you and others create using the Zooz Service. The Zooz Service also provides information about Zooz products and services.
2.2. ABOUT THE ZOOZtunes SERVICE The ZOOZtunes Service allows you to share the iTunes previews with other iTunes users to discover new music. The ZOOZtunes Service includes, but may not be limited to, turn a single song into a set of songs for your opponent to guess, customize the tunes you send with special effects, create audio messages to engage other users, and purchase songs from the itunes store (the "Building Blocks"), along with a unique and innovative "game play" interface that gives you a set of tools and features to discover and share music with your friends.
4. ACCESSING THE ZOOZ SERVICE/ ZOOZtunes Service
4.1. Eligibility. You must be 13 to use the Zooz Service, and by using the Zooz Service, you represent that you are 13 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Zooz Service is not intended for children under the age of 13. If you are using or opening an account on the Zooz Service on behalf of a company, entity, or organization (collectively "Subscribing Organization"), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms and (ii) agree to be bound by these Terms on behalf of such Subscribing Organization.
4.2. Access.Zooz grants you permission to access and use the Zooz Service as set forth in these Terms, provided that: (i) you use the Zooz Service solely for your personal, private, noncommercial use; (ii) you do not reproduce, publicly display, publicly perform, or distribute any part of the Zooz Service, including any materials obtained from the Zooz Service, in any medium without Zooz's prior written authorization, or as authorized in these Terms or any separate End User License Agreement; (iii) you do not alter or modify any part of the Zooz Service other than as may be reasonably necessary to use the Zooz Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you will otherwise fully comply with these Terms.
4.2.2. The Zooz Service is controlled and offered by Zooz from its facilities in the United States of America. Zooz makes no representations that the Zooz Service is appropriate or available for use in other locations, and access to the Zooz Service from territories where any content or features that are available on or through the Zooz Service may be illegal is prohibited. Those who access or use the Zooz Service from other jurisdictions do so at their own risk and are solely responsible for compliance with local laws.
4.3. Fees. Certain functions on the Zooz Service may now or in the future have fees associated with them, including, without limitation, license fees to download certain Apps or Building Blocks. When you use a function or initiate any action that has a fee you will have an opportunity to review and accept the fees that you will be charged based on our stated fees, which we may change from time to time in our sole discretion. Zooz may choose to temporarily change the fees for Zooz's services for promotional events or new services without liability to users who have already paid higher fees for the same services, and such changes are effective immediately upon posting through the Zooz Service. Any changes for such fees will be effective as described in Section 12 ("Modification of the Terms"), below. Unless otherwise stated, all fees are in U.S. Dollars.
5. INTELLECTUAL PROPERTY RIGHTS NOTICE
The Zooz Service is owned and operated by Zooz. The content, visual interfaces, interactive features, information, graphics, design, compilation, Building Blocks, computer code, products, software, services, and all other elements of the Site and the Apps provided by Zooz ("Zooz Content"), are the valuable proprietary and intellectual property of Zooz or its licensors. Zooz Content is protected by any and all applicable international, federal, and state laws, rules, orders and regulations relating to intellectual or proprietary property, including, but not limited to, patent, copyright, trademark and trade secret. You agree not to reproduce, distribute, display, revise, create derivatives of, copy, publish, sell, license, or edit any such content, information or software. You may view and download a single copy of these materials for your own personal, noncommercial use. Any attempt to download, print, publish or maintain a significant portion of the content, information, or software from the Zooz Service in violation of these Terms or any applicable license, to distribute copies of such content, information or software, including any Apps, or to otherwise exploit the content, information or software in violation of the intellectual property or proprietary rights of others is strictly prohibited by these Terms. Software made available for download is subject to these Terms, and may be further subject to the provisions of any End User License Agreement specific to such software download.
6. USE OF THE APPS
6.1. Limited License. All aspects of the Zooz Service, including the Apps, are licensed, not sold or otherwise transferred to you. Subject to your acceptance of, and ongoing compliance with, these Terms (including payment of any applicable license fees), Zooz hereby grants you a limited, non-transferable, non-sublicensable, revocable license to (i) use Apps on a device that you own or control; (ii) to access and use Zooz Content, including the Building Blocks, through the Zooz Service and as otherwise permitted by these Terms and the features of the Zooz Service, for your own personal enjoyment; (iii) to use the Apps to create derivative works based on the Building Blocks by combining them with your own creative input; and (iv) to access, use, and share works you create using the Apps, subject to and consistent with these Terms and the intended features of the Zooz Service. You may not use the Apps on any device that you do not own or control, and you may not distribute or make the Apps available over a network where they could be used by multiple devices at the same time. You may not rent, lease, lend, sell, reproduce, redistribute or sublicense the Apps or the Building Blocks. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Apps, any updates, or any part thereof, including the Building Blocks (except as and only to the extent that any foregoing restriction is prohibited by applicable law).
6.2. Applicability to Upgrades. These Terms or the terms of any separate license will govern any upgrades provided by Zooz that replace and/or supplement the original Apps, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
6.4. Special Considerations. You, and not Zooz, are solely responsible for your use of the Apps, and you should use common sense and exercise good judgment when making choices concerning such use. Without limiting the generality of the preceding sentence, the following are some examples of particular considerations you should keep in mind: (i) activities that involve frequent and repetitive movements, and prolonged screen viewing time, may lead to certain types of repetitive strain injuries, such as carpal tunnel syndrome, tendonitis, and eye strain, and when using the Apps you should ensure that you avoid using excessive force and take regular breaks, and if you experience soreness or develop symptoms such as pain, tingling, numbness, or burning you should stop using the Apps and consult a doctor; (ii) you should stay aware of your surroundings and keep a firm grip on your device while using the Apps (and if you start to perspire, take a break to dry your hands) to avoid damage or injury to yourself, your device, or other people and property around you; (iii) never use the Zooz Service while driving a motor vehicle or operating other machinery, or while engaging in other activities that require focused attention to accomplish safely; and (iv) certain aspects of video game play can cause other health problems ranging from dizziness, nausea, and motion sickness, to blackouts or seizures which can be triggered by light flashes or patterns, and you should consult a doctor prior to using the Apps if you are prone to any of these conditions, or immediately upon experiencing any of these symptoms while using the Apps.
7. USER SUBMISSIONS
7.1. General. The Zooz Service may now or in the future provide features for you and other users to submit, post, and share content with other users in both editable and non-editable form, including musical works, sound recordings and audiovisual works, text, chat, commentary or any other content submitted by you and other users through the Zooz Service ("User Submissions"), and provide for the hosting, sharing, reproduction, distribution, public performance, public display and creation of derivative works of such User Submissions. You must be a registered Zooz user to submit content to the Zooz Service. User Submissions are displayed for entertainment and informational purposes only and are not controlled by Zooz. While Zooz provides tools to aid you in controlling access by others to your User Submissions, Zooz cannot guarantee any anonymity or confidentiality with respect to any User Submissions, and strongly recommends that you think carefully about what you upload to the Zooz Service. You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means that you, and not Zooz, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the Zooz Service.
7.2. No Obligation to Publish. Zooz makes no representations that it will publish or make available on the Zooz Service any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Zooz Service, or to remove any User Submission at any time with or without notice. Without limiting the generality of the preceding sentence, Zooz complies with the Digital Millennium Copyright Act, and will remove User Submissions upon receipt of a compliant takedown notice (see "Digital Millennium Copyright Act" below).
7.3. License Grant by Zooz to You. Upon uploading your User Submission to the Zooz Service, Zooz grants you a non-exclusive, fully paid-up, royalty-free, revocable, sublicensable, and transferable license, throughout the universe, to download, use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit all elements embodied within the User Submission, including the Building Blocks, which are owned or so licensable by Zooz.
7.4. License Grant by You to Zooz. You retain all of your ownership rights in original aspects your User Submissions, subject to Zooz's underlying rights in the Building Blocks and Zooz's licensors' underlying rights in the Third Party Building Blocks (as defined in Section 7.7, below).
7.4.1. Public User Submissions. By submitting User Submissions to Zooz and choosing to designate such User Submissions as "Public" (your "Public User Submissions"), you hereby grant Zooz and its affiliates, sublicensees, partners, designees, and assignees of the Zooz Service (collectively, the "Zooz Licensees") a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license, throughout the universe, to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit your User Submissions and derivatives thereof in connection with the Zooz Service and Zooz's (and its successor's) business, including, without limitation, for marketing, promoting, and redistributing part or all of the Zooz Service (and derivative works thereof), in any media formats and through any media channels now known or hereafter discovered or developed.
7.4.2. Non-Public User Submissions. If you choose instead not to make a User Submission "Public", the license provided in Section 7.4.1 will be limited to use by the Zooz Licensees as reasonably necessary for the purpose of providing you and other users you have specifically identified using the "Share" feature of the Zooz Service access to the User Submission through the Zooz Service; provided, however, that you acknowledge that by making a User Submission private after you have previously designated it as a Public User Submission, Zooz will not be obligated to terminate any sublicenses previously granted with respect to such User Submission, nor shall the foregoing license limitation apply with respect to ongoing uses by the Zooz Licensees of such User Submission made by the Zooz Licensees when such User Submission was designated as a Public User Submission, whereby the particular User Submission has been adapted, modified, or incorporated into any other work, including compilations and collective works.
7.4.3. Example of Re-Designation. By way of example and not limitation, you grant the Zooz Licensees the right to use your Public User Submissions or portions thereof in any online game and for advertising and promotional purposes, without any compensation to you, and Zooz may continue to make such uses after you re-designate your User Submission as private, if such use was first made while it was designated as a Public User Submission.
7.5. License Grant by You to Other Users.
7.5.1. Public User Submissions. You hereby grant to each user of the Zooz Service a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, non-sublicensable, and transferable license, throughout the universe, to access and share your Public User Submissions with others as permitted by the functionality of the Zooz Service and these Terms, as amended from time to time, including, but not limited to, by using the Share feature of the Zooz Service, and by making your Public User Submissions available through third party services using techniques such as linking and embedding.
7.5.2. Shared User Submissions. You hereby grant to users you specifically identify using the "Share" feature of the Zooz Service a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, non-sublicensable, and transferable license, throughout the universe, to access the particular shared User Submission with others through the Zooz Service as permitted by the functionality of the Zooz Service and these Terms, as amended from time to time. If you indicate at the time you Share the particular User Submission that you wish to allow the recipient to share the particular shared User Submission with others, you grant the recipient a license to utilize your User Submission as specified in Section 7.5.1.
7.5.3. Editable User Submissions. The Zooz Service may also allow you to share your User Submissions with other users in editable format (e.g. by allowing other users to modify, adapt, extract portions of, and create derivative works from your User Submissions). If you choose to designate a User Submission as "Editable" (an "Editable User Submission"), you grant to each user of the Zooz Service to whom you make such Editable User Submission available (either by designating the User Submission as "Public" or by making the User Submission available to a particular user with the "Share" feature) a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable through multiple tiers, and transferable license, throughout the universe, to access and download such Editable User Submission to a handset using the Apps, and to reproduce, distribute, display publicly, perform publicly, prepare and authorize others to prepare derivative works thereof, and to reproduce, distribute, display publicly, and perform publicly such derivatives, whether through the Zooz Service or otherwise, and to make such derivatives available to other users as Editable User Submissions as provided in this Section 7.5.3.
7.6. Additional License Grants. You grant the Zooz Licensees the right to use your name and/or likeness and/or any name and/or likeness that you submit in connection with your User Submissions if they should choose, without compensation or need for your prior approval, or to exercise any of the rights licensed by you hereunder, in connection with a fictional name or persona or without any attribution at all. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. By accepting any prize from Zooz for participation in any Contest, you hereby grant Zooz a non-exclusive, perpetual license to print, publish, broadcast and use, worldwide, in any media and at any time, your name, picture, voice, likeness, and/or biographical information for promotional or related purposes without any additional compensation.
7.7. Third Party Licensed Materials.
7.7.1. Additional Restrictions May Apply. Notwithstanding any rights and licenses granted to you in these Terms, portions of the Zooz Service may contain copyrighted rhythmic beats, musical "stems", background tracks, instrument voices, and other musical works, sound recordings, and other materials owned by third parties and licensed to Zooz (the "Third Party Building Blocks") for certain limited uses within the Zooz Service, and your rights to access, use, and share the Third Party Building Blocks, and any content which contains, incorporates, adapts, or otherwise utilizes such Third Party Building Blocks, may be subject to certain restrictions including, but not limited to, prohibitions on saving such Third Party Building Blocks or any derivative works based thereon to your device, computer desktop, or other storage media, or on sharing such content through the Zooz Service, whether alone or as a part of any derivative work based thereon.
7.7.2. Premium Content. Certain content, including but not limited to some Third Party Building Blocks, may be designated as "Premium Content". With respect to such content and notwithstanding any other rights and licenses granted to you under these Terms, your rights shall be limited to (i) accessing such Premium Content through the Zooz Service; (ii) creating derivative works based on such Premium Content through the Zooz Service; and (iii) uploading User Submissions which are based on or otherwise include or incorporate Premium Content to the Zooz Service in non-editable format.
7.8. User Submissions Representations and Warranties. You are solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Zooz to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by Zooz and these Terms, and to grant the rights and license set forth above (including all rights necessary for the use of any musical works, sound recordings, or other works embodied in any User Submissions), and (ii) your User Submissions, Zooz's or any Zooz Licensee's use of such User Submissions pursuant to these Terms, and Zooz's or any Zooz Licensee's exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) violate any applicable law or regulation; or (d) require obtaining a license from or paying royalties to any third party for the exercise of any rights granted in these Terms, including, by way of example and not limitation, the payment of any royalties to any sound recording copyright owners, so-called mechanical or synchronization royalties to any music publishers, or any public performance royalties to any performing rights organization (e.g., ASCAP, BMI, SESAC).
7.9. User Submissions Prohibited Uses. In connection with your User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Zooz or any third party; (ii) use any copyrighted content owned or controlled by a third party, including, but not limited to, literary works, musical works, or sound recordings, without obtaining the necessary permissions, licenses and authorizations for the use of such third-party content; (iii) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; (v) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (vi) post User Submissions that would be harmful to minors in any manner; or (vii) reproduce, distribute, publicly display, publicly perform, adapt, or otherwise publish or cause to be published any User Submission except as permitted by these Terms and the features of the Zooz Service.
YOU MAY NOT UPLOAD TO THE ZOOZ SERVICE, WHETHER IN WHOLE OR IN PART, ALONE OR IN COMBINATION WITH OTHER MATERIALS, ANY COPYRIGHTED SOUND RECORDINGS, MUSICAL WORKS, LITERARY WORKS, OR ANY OTHER WORKS THAT YOU DO NOT OWN, CONTROL OR HAVE AN EXPRESS WRITTEN LICENSE TO USE ON THE ZOOZ SERVICE. IF YOU UPLOAD CONTENT FOR WHICH YOU DO NOT HAVE THE RIGHT OR AUTHORIZATION, THEN YOU MAY BE SUBJECT TO LIABILITY FOR INFRINGEMENT DAMAGES, IN ADDITION TO ANY OTHER RIGHTS ZOOZ MAY HAVE AGAINST YOU, INCLUDING REMOVAL OF YOUR USER SUBMISSIONS AND DEACTIVATION OF YOUR ACCOUNT.
7.10. Content Disclaimer. YOU UNDERSTAND THAT WHEN USING THE ZOOZ SERVICE, YOU WILL BE EXPOSED TO USER SUBMISSIONS FROM A VARIETY OF SOURCES, AND THAT ZOOZ IS NOT RESPONSIBLE FOR THE ACCURACY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH USER SUBMISSIONS. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER SUBMISSIONS THAT ARE INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST ZOOZ WITH RESPECT THERETO. ZOOZ DOES NOT ENDORSE ANY USER SUBMISSION OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED THEREIN. UNDER NO CIRCUMSTANCES WILL ZOOZ BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY USER SUBMISSIONS, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS IN ANY CONTENT, ANY INTELLECTUAL PROPERTY INFRINGEMENT WITH REGARD TO ANY CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED OR OTHERWISE DISPLAYED OR TRANSMITTED VIA THE ZOOZ SERVICE. BY ACCESSING OR USING ANY USER SUBMISSIONS THROUGH THE ZOOZ SERVICE, YOU WAIVE ANY AND ALL CLAIMS AGAINST ZOOZ THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO SUCH USER SUBMISSIONS.
8. MONITORING USER SUBMISSIONS; REMOVAL OF CONTENT
Zooz does not control User Submissions and does not have any obligation to monitor such User Submissions for any purpose. Zooz may choose, in its sole discretion, to monitor, review, or otherwise access some or all User Submissions, but by doing so Zooz nonetheless assumes no responsibility for the User Submissions, no obligation to modify or remove any inappropriate User Submissions, or to monitor, review, or otherwise access other User Submissions, and Zooz assumes no responsibility for the conduct of the User submitting any User Submissions. You acknowledge that Zooz may or may not pre-screen User Submissions, but that Zooz and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Submission that is available via the Zooz Service. Without limiting the foregoing, Zooz and its designees may, at any time and without prior notice, remove any User Submission that in the sole judgment of Zooz violates these Terms or is otherwise objectionable, or for any other reason, with or without notice and with no liability of any kind. You agree that you must evaluate, and bear all risks associated with the use of any User Submissions or other Content, including any reliance on the accuracy, completeness, usefulness or legality of such User Submission. You should exercise good judgment before downloading any other User Submissions.
9. PROHIBITED USE OF THE ZOOZ SERVICE
You agree not to use the Zooz Service for any unlawful purpose or in anyway that might harm, damage, or disparage any other party. Without limiting the proceeding sentence and by way of example, you agree that you will not, whether through the Site, the Apps, your User Submissions, or otherwise, do or attempt any of the following:
9.1. Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site, Apps, Zooz Content, User Submissions, or any other part thereof, except and solely to the extent permitted by these Terms, the features of the Zooz Service, or by law, or otherwise attempt to use or access any of the Zooz Service other than as intended;
9.2. Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Zooz Service, use of the Zooz Service, access to the Zooz Service, or content obtained through the Zooz Service (including without limitation Zooz Content and User Submissions), for any purpose other than for your personal, noncommercial purposes, except and solely to the extent permitted by these Terms;
9.3. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Zooz Service, features that prevent or restrict the use or copying of any part of the Zooz Service, or features that enforce limitations on the use of the Zooz Service or any content therein;
9.4. Use any robot, spider, scraper, or other automated means of any kind to access the Zooz Service, except and solely to the extent permitted by these Terms and the features of the Zooz Service, deep-link to any feature or content on the Zooz Service, frame or otherwise enclose any Zooz trademark or any portion of the Zooz Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Zooz Service;
9.5. Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
9.6. Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
9.7. Create a false identity or impersonate another for the purpose of misleading others as to the identity of the sender or the origin of a message, including, but not limited to, providing misleading information to any feedback system employed through the Zooz Service;
9.8. Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs;
9.9. Interfere with or disrupt the Zooz Service, networks or servers connected to the Zooz Service, or violate the regulations, policies or procedures of such networks or servers;
9.10. Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in your User Submissions, whether through the voice recording feature or otherwise;
9.11. Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation (commercial or otherwise); or
9.12. Use the Site in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
10. ACCOUNT INFORMATION & RESPONSIBILITIES OF REGISTERED USERS
In order to access some features of the Zooz Service, including certain content, you will have to create an account. You hereby represent and warrant that the information you provide to Zooz upon registration and, at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times.
As a registered user, you will have login information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Zooz Service. You will notify us of any breach in secrecy of your login information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Zooz by e-mail to email@example.com. You will be solely responsible for the losses incurred by Zooz and others (including other users) due to any unauthorized use of your account that takes place prior to notifying Zooz that your account has been compromised.
12. MODIFICATION OF THE TERMS
13. THIRD PARTY CONTENT AND LINKS
The Zooz Service may contain references or links to third-party materials (including, without limitation, web sites) not controlled by Zooz or its suppliers or licensors. Zooz provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that Zooz is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Zooz Service.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Zooz Service are solely between you and such advertiser. YOU AGREE THAT ZOOZ WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE ZOOZ SERVICE. When you leave the Zooz Service, these Terms no longer govern. You should review applicable terms and policies, including any relevant privacy policies, associated with any third party web sites, software, or services you utilize.
14. AVAILABILITY OF SERVICE
Zooz may make changes to or discontinue any of the features, media, content, communities, products, software, or services available within the Zooz Service at any time, and without notice. The features, media, content, communities, products, software, or services on the Zooz Service may be out of date, and Zooz makes no commitment to update any materials on the Zooz Service.
15. USER DISAGREEMENTS
Your use of the Zooz Service may bring you into contact with other users, and their User Submissions. You are solely responsible for your involvement with other Users. If you have a dispute with one or more Users, you release Zooz (and Zooz's officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (including, but not limited to, actual, special, consequential and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
16.1. By Zooz. Zooz, in its sole discretion and for any reason or no reason, may terminate any user or user account (or any part thereof) you may have on the Zooz Service, disable your access to the Zooz Service (or any part thereof), discontinue the Zooz Service and any related services including support (or any part thereof), or terminate any license granted to you hereunder (including licensed rights to any content or materials downloaded by you during your use of the Zooz Service, including User Submissions), at any time, with or without notice. You agree that any termination of your access to the Zooz Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Zooz shall not be liable to you or any third-party for any such termination, including for the unavailability of any User Submissions (including those uploaded by you). Zooz does not permit unlawful, infringing, fraudulent, or otherwise illegitimate activities on the Zooz Service, and reserves the right to terminate access to the Zooz Service, or halt, suspend, or terminate prizes (whether proposed, pending or past) in cases of actual or suspected fraud, or violations of these Terms or other laws or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Zooz may have at law or in equity.
16.2. By You. If you are dissatisfied with the Zooz Service, then please let us know by e-mailing us at firstname.lastname@example.org. Your only remedy with respect to any dissatisfaction with (i) the Zooz Service, (ii) any term of these Terms, (iii) any policy or practice of Zooz in operating the Zooz Service, or (iv) any content or information transmitted through the Zooz Service, is to terminate your use of the Zooz Service. You may terminate your use by closing your account, discontinuing your use of any and all parts of the Zooz Service, or providing Zooz with notice of termination at email@example.com.
17. CONFIDENTIAL INFORMATION
If you access or download certain content, information or software through the Zooz Service, it may contain confidential information of Zooz. You agree to keep Zooz's information confidential by exercising the necessary care required to prevent its disclosure. Notwithstanding the above, you will not disclose, divulge, distribute, publish, transmit or transfer Zooz's information to any third party or use Zooz's information for any purpose whatsoever other than as expressly authorized by these Terms. Your obligations with respect to Zooz's confidential information, whether or not deemed trade secret under applicable law, shall remain in effect until such time as the particular information becomes publicly known through no action by you.
You agree to indemnify and hold harmless Zooz and its parent, subsidiaries, affiliates or any related companies, licensors and suppliers, and their respective directors, officers, employees, agents, representatives, and contractors, and other Zooz users who use any User Submissions you upload to and make public on the Sites or specifically share with any other users, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to (i) your use or misuse of the Zooz Service; (ii) your User Submissions, including Zooz's or any user's reproduction, distribution, public performance, public display, modification, editing, adaptation, or other exploitation of your User Submissions consistent with these Terms; (iii) your breach or other violation of these Terms including any representations, warranties and covenants herein; (iv) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Submission infringes or violates any third party intellectual property rights, including any claims for the payment of so-called mechanical royalties, synchronization royalties, public performance royalties, or any other royalties claimed by any owner of any rights in any User Submission. Zooz reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent from Zooz. Zooz will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THE ZOOZ SERVICE (INCLUDING, WITHOUT LIMITATION, THE SITE, THE APPS, ANY CONTENT, OR ANY OTHER SERVICE OR INFORMATION PROVIDED BY ZOOZ), USER SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ZOOZ SERVICE, ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", "WITH ALL FAULTS" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ZOOZ AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZOOZ OR THROUGH THE ZOOZ SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. ZOOZ AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE ZOOZ SERVICE OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY APPS, BUILDING BLOCKS AND USER SUBMISSIONS, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE ZOOZ SERVICE (INCLUDING APPS, BUILDING BLOCKS, USER SUBMISSIONS, MEDIA, AND RSS FEEDS) OR ANY ASSOCIATED SITES OR APPS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE ZOOZ SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. YOU UNDERSTAND AND AGREE THAT USE OF THE APPS, INCLUDING OVERUSE, IMPROPER USE, USE WHILE DRIVING OR OPERATING OTHER MACHINERY, OR FAILURE TO BE AWARE OF YOUR SURROUNDINGS OR KEEP A FIRM GRIP ON YOUR DEVICE WHILE USING THE APPS, COULD RESULT IN HARM OR INJURY TO YOURSELF OR OTHERS AND DAMAGE TO YOUR DEVICE, OR TO OTHER PROPERTY, AND YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY SUCH HARM, INJURY, OR DAMAGE.
ZOOZ MAKES NO REPRESENTATIONS OR WARRANTIES, IMPLICIT OR EXPLICIT, AS TO YOUR LEGAL RIGHT TO PARTICIPATE IN ANY CONTEST OFFERED ON THE ZOOZ SERVICE NOR SHALL ANY PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH ZOOZ HAVE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
20. LIMITATION OF LIABILITY
IN NO EVENT WILL ZOOZ OR ITS OFFICERS, DIRECTORS, LICENSORS OR SUPPLIERS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE ZOOZ SERVICE OR ITS CONTENT, INCLUDING USER SUBMISSIONS, OR ANY OTHER LINKED WEB SITE, APPLICATION, OR OTHER SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF ZOOZ OR ITS LICENSORS OR SUPPLIERS IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ZOOZ OR ITS LICENSORS OR SUPPLIERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY WHICH EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID ZOOZ IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
21. LIMITATIONS; BASIS OF THE BARGAIN
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ZOOZ, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND ZOOZ, ZOOZ'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT ZOOZ WOULD NOT BE ABLE TO OFFER THE ZOOZ SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
22. DIGITAL MILLENNIUM COPYRIGHT ACT
22.1. General. Zooz respects the rights of copyright owners and expects its users to do the same. Therefore, infringing content may not be submitted to the Zooz Service or used in, whole or in part, in any User Submissions.
22.2. User Submissions. If you upload a User Submission that contains any copyrighted work, including literary works, musical works, or sound recordings, or any combination thereof, then you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the Zooz Service and grant the rights to any third parties, including Zooz and any other users, contained in these Terms. In addition to being grounds for removal of your User Submission, termination of your account, and any other remedy Zooz may have against you, your failure to own or obtain such rights may subject you to civil and/or criminal liability, the damages for which can be significant.
22.3. Copyright Owner Rights. If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Zooz Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Zooz's Designated Copyright Agent with the following information in writing:
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Zooz Service are covered by a single notification, a representative list of such works on the Zooz Service;
(iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Zooz to locate the material;
(iv) information reasonably sufficient to permit Zooz to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) a statement that the complaining party 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 (for example, "I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law."); and
(vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.").
Please consult your legal counsel (or see 17 U.S.C. Ã‚Â§ 512) to confirm these requirements and your compliance therewith. It is Zooz's policy to respond to notices of alleged infringement that comply with the DMCA. In addition, Zooz will promptly terminate without notice the accounts of Users that are determined by Zooz to be "repeat infringers." If Zooz receives more than three takedown notices regarding a User's User Submissions, then that User will be considered a repeat infringer and their account will be terminated.
Zooz's Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: Copyright Agent, 325 Trowbridge Walk, Atlanta, GA, 30350, or by electronic mail at firstname.lastname@example.org. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Zooz customer service through email@example.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
22.4. Counter Notification. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to law, to submit the User Submission to the Zooz Service, then you may send a counter notification containing the following information to Zooz's designated Copyright Agent at the address listed above:
(i) Your physical or electronic signature
(ii) Identification of the User Submission that was removed or to which access has been disabled and the location at which the content appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that you have a good faith belief that your User Submission was removed or disabled as a result of mistake or misidentification of the User Submission to be removed or disabled; and
(iv) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Atlanta, Georgia, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter notice is received by the Copyright Agent, then Zooz may send a copy of the counter notice to the original complaining party informing that person or entity that Zooz may replace the removed User Submission or cease disabling access to it in ten business days. Unless the copyright owner files an action seeking a court order against the User submitting the User Submission, the removed User Submission may be replaced, or access to it restored, in ten to fourteen business days or more after receipt of the counter notice, at Zooz's sole discretion.
23. DISPUTE RESOLUTION
23.1. General. Generally, if a dispute arises between Zooz and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Zooz agree that the parties will resolve any claim or controversy at law or equity that arises out of this Agreement or the Zooz Service (a "Claim") in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
23.2. Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of Georgia as they apply to agreements entered into and to be performed entirely within Georgia between Georgia residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Zooz must be resolved by a court located in Atlanta, Georgia, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Atlanta, Georgia for the purpose of litigating all such claims or disputes.
23.3. Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding, non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
23.4. Equitable Relief. The foregoing provisions of this Dispute Resolution Section do not apply to any Claim in which Zooz seeks equitable relief of any kind.
23.5. Claims. You and Zooz agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this agreement or the Zooz Service must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
23.6. Improperly Filed Claims. All claims you bring against Zooz must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to this Dispute Resolution Section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution Section, Zooz may recover attorneys' fees and costs up to $1,000, provided that Zooz has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
Zooz may provide you with notices by electronic mail, regular mail or postings on the Zooz Service. If Notice is provided by electronic mail, notice will be deemed given twenty-four hours after electronic mail is sent, unless Zooz is notified that the electronic mail address is invalid. If notice is provided by posting through the Zooz Service, then notice will be deemed given upon such posting. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Zooz Service. In such case, notice will be deemed given three days after the date of mailing.
This is the entire agreement between you and Zooz relating to the subject matter herein, and supersedes all previous communications, representations, understandings and agreements, either oral or written, between you and Zooz with respect to said subject matter. These Terms shall not be modified except in a writing signed by both parties or by a change to these Terms as provided in the Section 12 ("Modification of the Terms"), above. In the event any of the provisions of these Terms are held unenforceable or invalid by a court of competent jurisdiction, such provisions shall be deemed severed from the applicable agreement, and the remaining provisions thereof shall remain in full force and effect. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision, and the failure of Zooz to enforce, in any one or more instances, any of the provisions herein shall not be construed as a waiver of the future performance of any such terms or conditions. No consent to a breach of any express or implied term of the Terms or any other notice, directive, or rule otherwise posted through the Zooz Service shall constitute consent to any prior or subsequent breach. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Zooz as a result of these Terms or use of the Zooz Service. You further acknowledge that by submitting User Submissions, no confidential, fiduciary, contractually implied, or other relationship is created between you and Zooz other than pursuant to these Terms. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Zooz without restriction, including by operation of law, merger, or sale of all or substantially all of the assets to which this agreement pertains. Any assignment attempted to be made in violation of these Terms shall be void. The headings and captions in this Agreement are used for convenience only and are not to be considered in interpreting this Agreement.
The services hereunder are offered by:
325 Trowbridge Walk,
Atlanta, GA, 30350
If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your electronic mail address and a request for this information.
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