Terms of Service
Ninth Room, Inc. (DBA Zigy)
Terms of Service
Effective: April 2021
These Terms of Service constitute a legally binding agreement between you and Zigy (“Zigy,” “we,” “our” or “us”) governing your use of the Zigy Platform (as defined below), our website (the “Site”) and mobile applications (“Apps”). The related services provided by Zigy to potential Brands, Sellers, and Clients (each as defined in Section 1), the Site, and Apps are collectively referred to as the “Zigy Platform.”
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON, REGISTERING FOR AN ACCOUNT, DOWNLOADING OF AN APP OR ANY APP UPGRADES, USING THE APP ON YOUR MOBILE DEVICE, OR ACCESSING OR USING THE ZIGY PLATFORM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR THE APP. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE ZIGY PLATFORM. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND ZIGY CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 16, AS APPLICABLE). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
1. The Zigy Platform Connects Brands, Sellers and Clients
The Zigy Platform is a web and mobile application-based communications platform that enables connections among Brands, Sellers and Clients. “Clients” are individual consumers seeking to obtain and purchase certain products (“Products”) from Brands. “Brands” are businesses seeking to market and sell Products to Clients. “Sellers” are individuals who share, market and present Products to Clients on behalf of Brands and connect Clients to Brands via the Zigy Platform. Sellers for a Brand are approved by such Brand. Zigy is not responsible for their assignments or a Brand’s approval of any Sellers. Clients, Brands, and Sellers together are hereinafter referred to as “Users” or “You.”
Brands and Sellers may share, market, and sell Products to Clients via the Zigy Platform. When Clients purchase Products using the Zigy Platform, the Client is purchasing them directly from Brands named on the Zigy Platform. The contract for the purchase of the Products is between the Client and the Brand. Zigy is acting as an agent on behalf of the Brands. Clients are not purchasing the Products from Zigy. We are authorized by the relevant Brands to conclude the contract on their behalf, but Zigy is not a party to that contract.
The descriptions of Products on the Zigy Platform are based on information provided to Zigy by the Brands (who remain responsible for the accuracy of the descriptions). Zigy cannot guarantee that all details are always accurate, complete or error free. The images of the Products on the Zigy Platform are for illustrative purposes only, and although Zigy attempts to display colors accurately, Zigy cannot guarantee that your computer’s or phone’s display of the images accurately reflect the true color of the products.
Zigy requests that all Brands using the Zigy Platform have and maintain reasonable business policies which comply with our own business policies. We cannot, however, be responsible for each Brand’s business policies.
The Zigy Platform only enables communication between Users for the sharing, marketing and purchase of Products. Zigy is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of any User, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any User, or of any ratings provided by Users with respect to each other. Zigy makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Products provided by Users in the Zigy Platform, whether in public, private, or offline interactions or otherwise howsoever.
BRANDS AND SELLERS ARE NOT EMPLOYEES, CONTRACTORS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF Zigy. USERS HEREBY ACKNOWLEDGE THAT ZIGY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR THE WORK OR PRODUCTS PROVIDED BY A BRAND OR A SELLER AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE PRODUCTS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE.
2. Account, Password, Security, and Mobile Phone Use
You must register with Zigy and create an account to use the Zigy Platform (an “Account”) and as part of that process you will be requested to provide certain information, including without limitation your name, full address, phone number and email address. By using the Zigy Platform, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Zigy for accessing the Zigy Platform. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. If you are accessing and using the Zigy Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms provided herein. Zigy has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to contact Zigy immediately.
The person signing up for the Zigy Platform will be the contracting party (“Account Owner”) for the purposes of the Terms of Service and will be the person who is authorized to use any corresponding Account we provide to the Account Owner in connection with the Zigy Platform; provided, however, that if you are signing up for the Zigy Platform on behalf of your employer, then (i) your employer shall be the Account Owner and (ii) you represent and warrant that you have the authority to bind your employer to the Terms of Service. As the Account Owner, you are solely responsible for complying with the Terms of Service and only you are entitled to all benefits accruing thereto. Your Account is not transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account.
By providing your mobile phone number and using the Zigy Platform, you hereby affirmatively consent to Zigy’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (i) perform and improve upon the Zigy Platform, (ii) facilitate the carrying out our services, (iii) provide you with information and reminders regarding your registration, changes and updates, service outages or alterations, (iv) connect you to a Seller, and (v) share with other Users in private when all Users accept one another’s services. These calls and texts may include, among other things, reminders about upcoming services on the Zigy Platform and/or in follow up to any push notifications delivered through our Apps. Zigy will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Apps, texting “STOP” in response to any texts, or by emailing firstname.lastname@example.org and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing email@example.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
3. User Generated Content
“User Generated Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the Zigy Platform and its Users, including without limitation to images and information of Products. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Zigy:
· Is not involved in the creation or development of User Generated Content.
· Disclaims any responsibility for User Generated Content.
· Cannot be liable for claims arising out of or relating to User Generated Content.
· Is not obligated to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Zigy Platform at its sole discretion.
You hereby represent and warrant to Zigy that your User Generated Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Zigy or purport you to act as a representative or agent of Zigy; and (viii) will not create liability for Zigy or cause Zigy to lose (in whole or in part) the services of its ISPs or other suppliers.
By making available any User Generated Content through the Zigy Platform, you hereby grant to Zigy a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Generated Content on, through or by means of the Zigy Platform. We do not claim any ownership rights in any such User Generated Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Generated Content.
4. User Representations and Warranties; Vetting
You represent and warrant that: (i) you are 18 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You agree not to engage in any of the following prohibited activities, among others: (i) copying, distributing, or disclosing any part of the Zigy Platform in any medium other than as allowed by the Zigy Platform and the Terms of Service; (ii) using any automated system (other than any functionalities of the Zigy Platform), including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Zigy Platform; (iii) transmitting spam, chain letters, or other unsolicited email or attempting to phish, pharm, pretext, spider, crawl, or scrape; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Zigy Platform; (v) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (vi) conducting any unlawful purposes or soliciting others to perform or participate in any unlawful acts; (vii) uploading invalid data, viruses, worms, or other software agents through the Zigy Platform; (viii) infringing upon or violate our intellectual property rights or the intellectual property rights of others; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) harassing, insulting, harming, abusing, defaming, abusing, harassing, stalking, threatening, intimidating or otherwise violating the legal rights (such as of privacy and publicity) of any other users or visitors of the Zigy Platform or staff member of Zigy; (xi) interfering with or any activity that threatens the performance, security or proper functioning of the Zigy Platform; (xii) uploading or transmitting viruses or any other type of malicious code; (xiii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Zigy Platform; (xiv) bypassing the security features or measures we may use to prevent or restrict access to the Zigy Platform, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Zigy Platform or the content therein; (xv) attempting to access unauthorized Accounts or to collect or track the personal information of others; (xvi) using the Zigy Platform for any purpose or in any manner that infringes the rights of any third party; or (xvii) encouraging or enabling any other individual to do any of the foregoing.
You hereby warrant and represent that, other than as fully and promptly disclosed to Zigy as set forth below, you do not have any motivation, status, or interest which Zigy may reasonably wish to know about in connection with the Zigy Platform, including without limitation, if you are using or will or intend to use the Zigy Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Zigy in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Zigy Platform.
In Zigy’s sole discretion, Users may be subject to a vetting process before they can register for and during their use of the Zigy Platform, including but not limited to a verification of identity through third-party services as appropriate (“Identity Checks”). Although Zigy may perform Identity Checks, Zigy is not required to do so and cannot confirm that each User is who they claim to be. Zigy cannot and does not assume any responsibility for the accuracy or reliability of Identity Check information or any information provided through the Zigy Platform. Zigy has discretion to include or exclude potential Users based off of vetting process results. When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Zigy will not be liable for any false or misleading statements made by Users of the Zigy Platform.
5. Terms of Sale
You understand that you are not buying directly from Zigy or from a Seller, but from the Brand, an independent party. Zigy does not manufacture, store or inspect the Products sold through the Zigy Platform and does not warrant that the quality of such Products or other material purchased or obtained by you will meet your expectations. Any legal claim related to a Product you purchase must be brought directly against the Brand. You release Zigy from any claims related to the Products sold through the Zigy Platform, including for defective items, misrepresentations by the Brand or a Seller, or items that caused physical injury (like product liability claims).
All orders are subject to availability and all prices advertised are subject to such changes. The Brands reserve the right to refuse any order or other request made by another User. The Client will receive a confirmation email from the Brand if the order is accepted. A contract between the Brand and the Client will not be formed until the Brand sends the email confirmation.
By placing a Product on the Zigy Platform, the Brands certify that they have provided accurate item descriptions, returns and shipping policies to the Clients. However, typographical errors, inaccuracies or omissions relating to Product descriptions, pricing, offers, shipping charges, transit times and availability may occur. We undertake no obligation to update, amend or clarify information on the Zigy Platform or on any related website, including without limitation, pricing information, except as required by law. We are not responsible if information on the Zigy Platform is not accurate, complete or current. Any reliance on the Product information is at your own risk.
Zigy does not manage or process, and is not responsible for, the fulfillment, shipping, or return of any Products purchased on the Zigy Platform. As such, please be advised that items from different Brands, even if purchased at the same time through the Zigy Platform, may be subject to different shipping and return policies because Brands’ policies may vary. Information regarding the Brand’s shipping and return policy will be presented to you prior to check-out on the Zigy Platform. You can also view the Brand’s shipping and return policy by visiting the Brand’s website. Prior to purchasing a Product on the Zigy Platform, it is your responsibility to understand the Brand’s return policy. If a Client is unhappy with the Products they receive from a Brand, the Client should contact the Brand. directly to try and resolve the issue. Any returns must be made between the Brand and the Client themselves.
6. Billing and Payment for Products
Payment for Products is made directly from the Client to the Brand via the PSP, and not by or through Zigy. Clients will be solely responsible for paying for the Products and Zigy is not obligated to pay Brand for Client’s failure to pay.
Payment and any other expenses must be paid through the PSP as indicated on the Zigy Platform. Brands and Sellers may be required to register with the PSP, agree to terms of service of the PSP, provide their payment details to the PSP and go through a vetting process at the request of the PSP to set up their account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, each Brand and Seller agrees that they have downloaded or printed, and reviewed and agreed to, the PSP Services Agreement. Please note that Zigy is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that Zigy has no obligations, responsibility or liability to any User or any other party under the PSP Services Agreement.
Each Brand provides pricing in addition to the payment method through the Zigy Platform. All prices and fees displayed on the Zigy Platform are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services or other taxes, fees or charges now in force or enacted in the future (“Taxes”). Any applicable Taxes are based on the rates applicable to the billing address you provide to us, and will be calculated at the time of a transaction is charged to your Account. Unless otherwise indicated, all prices, fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
7. Seller Commissions
a. Seller Commissions. When an item from a Seller’s curated shop on the Zigy Platform (“Seller Shop”) is purchased by a Client, the Seller is entitled to a commission from the Brand. Sellers and Brands are responsible for agreeing upon and for communicating the agreed-upon commission percentage to Zigy within the Zigy Platform. After a Client purchases an item from the Seller Shop, Zigy will pay the commission to the Seller at the end of the return period, provided the Client has not returned the goods within this period.
b. Zigy Transaction Fee. Zigy charges Sellers a 10% service fee assessed on the gross value of the Seller’s commission. Zigy deducts the service fee from the Seller’s commission prior to payment of the Seller.
8. App Updates and Upgrades
9. Termination, Cancellation, and Suspension
a. A Brand may cancel and delete its Account at any time by either using the features on the Zigy Platform to do so (if applicable and available) or by written notice to firstname.lastname@example.org. In the event that Brand terminates its Account prior to the end of the subscription term, unless otherwise agreed in writing between Brand and Zigy, Brand will (i) remain liable for any unpaid subscription fees for the full subscription term and (ii) not be entitled to any refund of any fees, pro rata or otherwise.
b. Sellers and Clients may cancel and delete their Accounts at any time by either using the features on the Zigy Platform to do so (if applicable and available) or by written notice to email@example.com.
c. After cancellation, you will no longer have access to your Account, your profile or any other information through the Zigy Platform. The provisions of the Terms of Service which by their intent or meaning intended to survive such termination, including without limitation the provisions relating to disclaimer of warranties, limitations of liability, and indemnification, shall survive the any termination of the Terms of Service and any termination of your use of or subscription to the Zigy Platform and shall continue to apply indefinitely.
d. Unless otherwise agreed to in writing between you and Zigy, Zigy may terminate the Terms of Service or terminate (or suspend access to) your Account at any time for any reason, including your breach of these Terms. For example, Zigy may suspend or terminate an account for failure to pay fees owed to Zigy, unless otherwise agreed in writing with Zigy. Zigy may also suspend or terminate an Account if we suspect that you have engaged in fraudulent activity in connection with use of our services.
e. We reserve the right to refuse the Zigy Platform to anyone for any reason at any time. Zigy may terminate or limit your right to use the Zigy Platform in the event that we are investigating or believe that you have breached any provision of this Agreement (a “User Breach”), by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. If Zigy terminates or limits your right to use the Zigy Platform pursuant to this Section 8, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
f. Following the termination or cancellation of your Account, we reserve the right to delete all your data, including any User Generated Content, in the normal course of operation. Your data cannot be recovered once your Account is terminated or cancelled.
g. Even after your right to use the Zigy Platform is terminated or limited, this Agreement will remain enforceable against you. Zigy reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 16 of these Terms of Service.
h. Zigy reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Zigy Platform at its sole discretion. Zigy is not liable to you for any modification or discontinuance of all or any portion of the Zigy Platform. Zigy has the right to restrict anyone from completing registration as a User if Zigy believes such person may threaten the safety and integrity of the Zigy Platform, or if, in Zigy’s discretion, such restriction is necessary to address any other reasonable business concern.
10. Links to Third-Party Websites
The Zigy Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Zigy or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Zigy Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Zigy does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Zigy is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Zigy has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Zigy Platform at its sole discretion.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third party websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third party products should be directed to the third party.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Zigy expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Zigy Platform. You hereby agree to hold Zigy harmless from any liability that may result from the use of links that may appear on the Zigy Platform.
11. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, ZIGY DOES NOT EMPLOY ANY SELLER TO PERFORM SERVICES ON THE ZIGY PLATFORM. EACH SELLER ASSUMES ALL LIABILITY FOR PROPER CLASSIFICATION OF SUCH SELLER’S WORKERS BASED ON APPLICABLE LEGAL GUIDELINES. YOU FULLY AND FINALLY RELEASE ZIGY AND ITS AFFILIATES FROM ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, LOSSES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES THAT YOU MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, COMMON LAW, CIVIL LAW, STATUTE OR OTHERWISE, IN RESPECT OF PRODUCTS OR THE USE OF THE ZIGY PLATFORM, INCLUDING WITH RESPECT TO MISCLASSIFICATION OF THE USES AND THE TERMINATION OR CESSATION OF THIS AGREEMENT OR THE USE OF THE ZIGY PLATFORM.
Sellers do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Zigy. Each Seller acknowledges and agrees that Zigy does not, in any way, supervise, scope, direct, control or monitor another Zigy Amassador’s work or services or any Product in any manner. Zigy does not set a Seller’s work hours or location of work.
The Zigy Platform is not an employment agency service or business and Zigy is not an employer of any Seller. As such, Zigy is not responsible for and will not be liable for workers’ compensation or any Tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal, provincial or state withholdings in connection with a Seller’s use of the Zigy Platform. Sellers acknowledge and confirm that they are responsible for exercising their own business judgment in entering into purchase and sale transactions or other agreements on the Zigy Platform, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
This Section 10 in no way limits the generality of Section 14.
12. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Zigy Platform is owned by Zigy, excluding User Generated Content, which Users hereby grant Zigy a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Zigy owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Zigy Platform without Zigy’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content.
Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Zigy and, if applicable, the holder of the rights to the User Generated Content.
Zigy shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with a Brand as necessary to identify the Brand on the Service and to promote the Service and/or a Seller Shop (as defined below), including through Zigy’s marketing initiatives and campaigns.
The service marks and trademarks of Zigy, including without limitation Zigy and Zigy logos, are service marks owned by Zigy. Any other trademarks, service marks, logos and/or trade names appearing via the Zigy Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Subject to the terms and conditions hereof, you are hereby granted a limited, nonexclusive, nontransferable, freely revocable, license to access and use the Zigy Platform. We may terminate this license at any time for any reason or no reason. The Zigy Platform and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, reports generated by the Zigy Platform, and copyrights (the “Zigy Content”), and all Intellectual Property Rights (as defined below) related thereto, are the exclusive property of Zigy or, as applicable, its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, publicly distribute, publicly transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Zigy Platform. Use of the Zigy Content or materials on the Zigy Platform for any purpose not expressly permitted by this Agreement is strictly prohibited.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Your use of the Zigy Platform and the relating licenses granted hereunder are also conditioned upon your strict adherence to the letter and spirit of the various applicable guidelines and any end user licenses associated with your use of the Apps. Zigy may modify such guidelines in its sole discretion at any time. Zigy reserves the right to terminate your account and access to the Zigy Platform if it determines that you have violated any such applicable guidelines.
13. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Zigy and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Zigy Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify Zigy in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Zigy upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Zigy’s trade secrets, confidential and proprietary information, and all other information and data of Zigy that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Zigy or Zigy’s business, operations or properties, including information about Zigy’s staff, Users or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
14. Digital Millennium Copyright Act
In accordance with the Digital Millennium Copyright Act (“DMCA”), we’ve adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, Clients, Brands, or Sellers on the Zigy Platform and (2) remove and discontinue service to repeat offenders.
(1) Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Zigy Platform infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to the Zigy Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Zigy is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material;
(b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
(c) terminate such content provider's access to the Zigy Platform if he or she is a repeat offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
(d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Zigy is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Zigy may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Zigy may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Zigy’s discretion.
Please contact the Zigy Designated Agent at the following address:
Attn: DMCA Designated Agent
Zigy, Inc., 17 Calle Saltamontes, San Clemente, CA 92673
15. Disclaimer of Warranties
(a) Use Of The Zigy Platform Is Entirely At Your Own Risk
THE ZIGY PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ZIGY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE ZIGY PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE ZIGY PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE ZIGY PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
Zigy does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the Zigy Platform or any hyperlinked website or featured in any banner or other advertising, and Zigy will not be a party to or in any way be responsible for monitoring any transaction between you and another User. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, Zigy and its Affiliates do not warrant that access to the Zigy Platform will be uninterrupted or that the Zigy Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Zigy Platform, or as to the timeliness, accuracy, reliability, completeness or content of any service, information or materials provided through or in connection with the use of the Zigy Platform. Zigy and Affiliates are not responsible for the conduct, whether online or offline, of any User. Zigy and Affiliates do not warrant that the Zigy Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Zigy and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
In addition, no individual or entity shall be a third-party beneficiary of these terms. These terms are solely for the benefit of the parties to this Agreement and are not intended to and shall not be construed to give any person or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other rights (including, without limitation, any third party beneficiary rights), with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
(b) No Liability
You acknowledge and agree that Zigy is only willing to provide the Zigy Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Zigy and its Affiliates liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the Zigy Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by Zigy and Affiliates and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL Zigy AND ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY Zigy, OR THE COST OF SUBSTITUTE PRODUCTS) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE Zigy PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
ZIGY AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS ZIGY PLATFORM. ZIGY AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE ZIGY PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT ZIGY AND/OR ITS AFFILIATES ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO ZIGY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Some jurisdictions do not allow the exclusion of certain warranties or limitation of liability for consequential or incidental damages, so certain aspects of the limitations above may not apply to you.
THE ZIGY PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. BECAUSE Zigy IS NOT A PARTY TO OR OTHERWISE INVOLVED IN THE AGREEMENT BETWEEN USERS, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU HEREBY RELEASE ZIGY AND ITS AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL, OR EXEMPLARY), EXPENSES, LOSSES, GOVERNMENTAL OBLIGATIONS, SUITS AND/OR CONTROVERSIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You hereby agree to indemnify, defend, and hold harmless Zigy and Affiliates, and their attorneys, insurers, independent contractors, providers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use or access the Zigy Platform, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your account to the Zigy Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Zigy reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Zigy.
17. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND Zigy CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND Zigy TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Informal Negotiations
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Zigy (each a “Claim” and collectively “Claims”), you and Zigy agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration. This pre-arbitration negotiation shall be initiated by providing written notice to the other party — including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to Zigy, Inc., 17 Calle Saltamontes, San Clemente, CA 92673, Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Zigy may initiate arbitration while engaging in the informal negotiations.
During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
After a good faith effort to negotiate, if you or Zigy believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”).
(b) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND ZIGY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate contained in this Section 16 (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of this Agreement and your relationship with Zigy.
Claims covered by the Arbitration Agreement include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof); the Zigy Platform; your relationship with Zigy; the threatened or actual suspension, deactivation or termination of your Account or this Agreement; any city, county, state or federal wage-hour law; compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress; any promotions or offers made by Zigy; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Zigy and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters; and all other federal and state statutory and common law claims.
If there is a dispute about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of the Arbitration Agreement), you and Zigy agree that this threshold dispute shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disputes, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND ZIGY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THE ARBITRATION AGREEMENT. THE ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY THE TERMS OF THE ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and Zigy agree that any arbitration will be limited to the Claim between Zigy and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND ZIGY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and Zigy otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Zigy, which are addressed separately in Section 16(d) below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, to the fullest extent allowed by law: (i) you and Zigy agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (ii) for any claim brought on a private attorney general basis, including under PAGA, both you and Zigy agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (1) the unenforceable provision shall be severed from this Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (3) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. You and Zigy agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, both you and Zigy will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator 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 claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Zigy initiates arbitration under the Arbitration Agreement, Zigy will pay all AAA filing and arbitration fees.
(ii) If a User files a Claim in accordance with the Arbitration Agreement and the associated claim for damages does not exceed USD $10,000, Zigy will pay all AAA filing and arbitration fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(iii) If a User files a Claim in accordance with the Arbitration Agreement and the associated claim for damages exceeds USD $10,000, Zigy shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses, and the User shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the State of Delaware, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose, however, then the allocation of fees will be governed by the applicable AAA Rules.
(iv) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(v) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Zigy agree otherwise, any arbitration hearings between Zigy and a User will take place in the county of your billing address. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims may be, but are not required to be, arbitrated under the Arbitration Agreement:
· Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
· Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
· Applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
· A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 16(d) is deemed unenforceable by a court of competent jurisdiction; and
· Claims that may not be subject to arbitration as a matter of general law not preempted by the Federal Arbitration Act.
Nothing in the Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in the Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However, you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by the Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
Except as otherwise provided in the severability provisions in Sections 16(c) and 16(d) above, in the event that any portion of the Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
You may opt out of the Arbitration Agreement by notifying Zigy in writing within thirty (30) days of your agreement to these Terms of Service. To opt out, you must send a written notification to Zigy at Zigy, Inc., 17 Calle Saltamontes, San Clemente, CA 92673, Attention: Legal, that includes (i) your account username, (ii) your name, (iii) your address, (iv) your telephone number, (v) your email address, and (vi) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
18. Governing Law
Except as provided in Section 16 or expressly provided otherwise, this Agreement and your use of the Zigy Platform will be governed by, and will be construed under, the laws of the State of Delaware, without regard to choice of law principles. This choice of law provision is only intended to specify the use of Delaware law to interpret this Agreement.
19. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
20. General Provisions
Failure by Zigy to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Zigy with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” in Section 16, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary, (2) to an acquirer of assets, or (3) to any other successor or acquirer. Any assignment in violation of this Section 19 shall be null and void. This Agreement will inure to the benefit of Zigy, its successors and assigns.
21. Entire Agreement
The failure of us to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision.
The Terms of Service and any policies or operating rules posted by us on the Site or in the Apps in respect to the Zigy Platform constitute the entire agreement and understanding between you and us and govern your use of the Zigy Platform, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of the Terms of Service shall not be construed against the drafting party. The headings used in the Terms of Service are included for convenience only and will not limit or otherwise affect these terms.
22. Changes to this Agreement and the Zigy Platform
Zigy reserves the right to modify, discontinue or terminate any or all services on the Zigy Platform, or stop offering and/or supporting the Zigy Platform, including, but not limited to, functionalities, content and hours of availability, at any time either permanently or temporarily, at which point your license to use the Zigy Platform or any part of it will be automatically terminated or suspended. If that happens, Zigy is not required to provide refunds, benefits or other compensation to you in connection with discontinued elements of the Zigy Platform.
23. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
24. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the Zigy Platform, please contact us by email at firstname.lastname@example.org or by mail to or Zigy, Inc., 17 Calle Saltamontes, San Clemente, CA 92673.