Terms of Use
PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND ZARTY LLC (“ZARTY,” “WE,” OR “US”).
SECTION 15 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 15 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
By accessing or using any Zarty website, including, but not limited to, Zarty.com, or digital platform, with an authorized link to this Agreement (“Site”) or downloading, installing or using any Zarty mobile application with an authorized link to this Agreement (“Application”), accessing or using any content, information, services, features or resources available or enabled via the Site or Application (collectively with the Site and Application, the “Services”), clicking on a button or taking any other action to signify your acceptance of this Agreement, or completing our account registration process, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time through the Site and Application (2) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services and to bind that entity to this Agreement. References to “you,” “User” and “Users” in this Agreement refer to all individuals and other persons who access or use the Services, including, without limitation, any companies, organizations or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents or representatives. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Subject to Section 15.9 of this Agreement, Zarty reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
Zarty incentivizes users to give feedback data on products they purchase. Zarty will announce through the Application and push notifications, the products that they wish to obtain information on. Upon purchasing the products, users will upload receipts to verify purchases. Once a purchase is verified, the user will be given a multi-step form that will ask them questions surrounding the quality of the product.
1. Registration.
1.1. In order to use the Services, you must either be the age of majority in your jurisdiction, an emancipated minor, or be over the age of 13 and possess legal parental or guardian consent, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement and to abide by and comply with this Agreement. You represent that you meet the eligibility requirements in this Section. When registering an account for the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data “) and to promptly update the Registration Data thereafter as necessary to keep it current. You consent to Zarty use of such Registration Data in accordance with our Privacy Policy at zarty.com/privacy. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Zarty immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account at any given time. Zarty reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Zarty. YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE SERVICES BY ANYONE USING YOUR ACCOUNT WHETHER OR NOT SUCH ACCESS TO AND USE OF YOUR ACCOUNT IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.
1.2. Password. If you register an Account, you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you shall immediately notify Zarty. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, ZARTY OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
2. Points Programs / Purchases.
2.1. If you register for an Account via the Application or otherwise elect to participate in Zarty Points Program, you agree to the terms of the Zarty Point Program Terms (www.zarty.com/zarty-point-program-terms). If you do not agree to the terms of the Zarty Point Program Terms, you may not participate in the Points Program.
2.2. In order to access some features of the Zarty Services, you will have to create an Account. You acknowledge, consent, and agree that Zarty may access, preserve and disclose your Account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce this Agreement; (c) respond to any claim that User Content violates the rights of third parties; (d) provide certain customized features of the Zarty Services to you, if any; (e) respond if you contact Zarty for any reason; or (f) protect the rights, property, or personal safety of Zarty, its other Users, and the public. You may cancel your Account with us at any time by emailing [support@zarty.com]. We reserve the right to immediately terminate your Account in our sole discretion, and without prior notice to you, if you violate this Agreement or if we otherwise believe it is necessary to protect our interests or the interests of others.
2.3. Zarty does not guarantee a particular product’s immediate or continued availability that may be promoted within the Application.
2.4. Some aspects of the Zarty Services may require you to pay a fee, the details of which are available in various areas of the Zarty features or services. You agree to pay all fees and applicable taxes incurred by you or anyone using your account. We may revise the pricing for products, services or features offered through the Zarty Services at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or products or services provided by, us, your account may be closed without warning or notice at our sole discretion. EXCEPT AS OTHERWISE SET FORTH IN ANY RETURN POLICY OR CANCELLATION POLICY EXPRESSLY APPLICABLE TO OUR PRODUCTS, SERVICES OR FEATURES, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR PRODUCTS, SERVICES OR FEATURES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
2.5. Should you require further information or assistance with the care of your purchases, please contact us at [support@zarty.com].
3. User Content.
3.1. Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Services (“ User Content”). Zarty has no obligation to pre-screen any content. Zarty makes no representations that your User Content will remain available via the Services in any way. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Zarty reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Zarty shall have the right to remove any content that violates this Agreement or is otherwise objectionable. YOU UNDERSTAND THAT ANY USER CONTENT THAT YOU POST FOR VIEWING ON THE ZARTY SITE OR SERVICES IS MADE PUBLICLY AVAILABLE TO USERS OF THE ZARTY SITE AND SERVICES, AND ZARTY DOES NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY SUCH USER CONTENT, NOR DOES IT GUARANTEE THAT YOUR INTELLECTUAL OR PROPRIETARY RIGHTS IN SUCH USER CONTENT WILL NOT BE INFRINGED OR MISAPPROPRIATED.
3.2. Ownership of Your Content. Zarty does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Zarty the license set forth in Section 3.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
3.3. License to Your Content. Subject to any applicable Account settings, you grant Zarty and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, and with the right to grant and authorize sublicenses, to copy, reproduce, distribute, modify, adapt, translate, prepare derivative works of, perform, use, license, display, and otherwise exploit Your Content (in whole or in part) and create derivative works from Your Content for purposes of operating and providing the Services or otherwise in connection with the Zarty Services and Zarty’s (and its successors, transferees and sublicensees, as well as their respective affiliates) business, including without limitation for promoting and redistributing part or all of the Zarty Services (and derivative works thereof) in any media formats and through any media channels or through merchandising. You grant Zarty and its affiliates, transferees and sublicensees (and their respective affiliates) the right to use the name that you submit in connection with such User Content if they choose to do so. 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 Content. You also hereby grant to each User of the Zarty Services a non-exclusive license to access Your Content through the Zarty Services, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Content as permitted by the functionality of the Zarty Services and this Agreement. The above licenses granted by you in User Content you submit to the Zarty Services shall be perpetual and irrevocable, except that with respect to any User Content that you have removed or deleted while maintaining your Zarty Account, or any User Content following any deactivation or deletion of your Account, you may specifically notify Zarty regarding the termination of the foregoing license from you to Zarty, specifically identifying the item(s) of User Content to which such termination applies, in which case the foregoing license will terminate within a commercially reasonable time after you provide such notice to Zarty. You understand and agree, however, that even following such termination, Zarty may retain, but not display or perform, server copies of such User Content. Notwithstanding anything to the contrary herein, the above licenses granted by you in user comments you submit are perpetual and irrevocable. Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
3.4. Other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, pornographic, sexually explicit, obscene, offensive, profane, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violates any law or any right of privacy or publicity, harmful to minors, or is otherwise inappropriate; (iii) constitutes unauthorized or unsolicited advertising, soliciting, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Zarty prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Zarty; or (vi) involves falsehoods or misrepresentations that could damage Zarty or any third party.
3.5. Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own User Content and the consequences of posting such Content. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Zarty to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Zarty and this Agreement, and to grant the rights and license set forth in this Section, and (ii) your User Content, Zarty's use of such User Content pursuant to this Agreement, and Zarty's exercise of the license rights set forth in this Section, 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; or (C) violate any applicable law or regulation.
3.6. No Responsibility for User Content. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Content.
3.7. Third Party Content Disclaimer. You understand that when using the Zarty Services you will be exposed to User Content, advertising and other third party content (together, the "Third Party Content") from a variety of sources, and that you may be exposed to Third Party Content that is inaccurate, offensive, indecent, or otherwise objectionable. Zarty does not endorse any Third Party Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Zarty be liable in any way for or in connection with the Third Party Content, including, but not limited to, for any inaccuracies, errors or omissions in any Third Party Content, any intellectual property infringement or misappropriation with regard to any Third Party Content, or for any loss or damage of any kind incurred as a result of the use of any Third Party Content posted, emailed or otherwise displayed or transmitted through the Zarty Services.
3.8. Non-Monitoring of Users and Third Party Content. You understand that you, and not Zarty, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available through the Zarty Services. Zarty does not control Third Party Content posted by Users or otherwise made available by other persons or entities and does not have any obligation to monitor such Third Party Content for any purpose. If at any time Zarty chooses, in its sole discretion, to monitor the Third Party Content, Zarty nonetheless assumes no responsibility for the Third Party Content, no obligation to modify or remove any inappropriate Third Party Content, no obligation to continue to monitor the Third Party Content and no responsibility for the conduct of the User or other person or entity submitting any such Third Party Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Third Party Content, including any reliance on the accuracy, completeness, usefulness, non-infringement or legality of such User Content or other Third Party Content.
3.9. Removal of Third Party Content. Zarty and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Third Party Content that is available on the Zarty Services, in whole or in part, at any time for any reason or no reason, with or without notice and with no liability of any kind.
4. Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Zarty (“Feedback”) is at your own risk and that Zarty has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Zarty a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
5. Communications; Calls and Text Messages.
5.1. Consent to be Contacted by Zarty. We may offer communications via calls, SMS text messages or similar technology (including via automatic telephone dialing equipment) subject to our receipt of any consents from you required by applicable law. These communications may be sent or initiated by Zarty or any of its service providers, or for any customer service, account-related or marketing purpose. Message and data rates may apply. Message frequency may vary according to how you interact with our platform. To stop receiving text messages from a short code operated by Zarty, reply STOP to any message you receive from such short code. You agree we may send you a message to confirm your receipt of your STOP request. You can also opt-out of Zarty text messages by emailing us your request and mobile telephone number to support@zarty.com. You acknowledge and agree that our platform may not recognize and respond to texted unsubscribe requests that do not include the STOP keyword and agree that Zarty will have no liability for failing to honor such requests. For assistance with any text message issues, reply HELP to any text message you receive. You can also contact our customer assistance team by emailing us at support@zarty.com. Not all mobile devices may be supported and text messaging may not be available in all areas. Zarty and the mobile carriers supported on our platform are not liable for delayed or undelivered text messages. You promise that all information you provide through the Services (including but not limited to your telephone number(s) and other contact information) will be accurate, current and truthful to the best of your knowledge. You consent to Zarty use of such information in accordance with our Privacy Policy at zarty.com/privacy.
5.2. Consent to Call Recording and Monitoring. You acknowledge and agree that any telephone calls between you and Zarty representatives may be recorded and/or monitored for training, quality assurance or other business purposes.
6. Ownership of and License to Use Services.
6.1. Use of the Services. Except with respect to User Content, Zarty and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Zarty grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Zarty, its suppliers, and its service providers reserve all rights not granted in this Agreement.
6.2. Trademarks. Zarty name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Zarty and may not be used without written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
7. Restrictions on Use of the Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Zarty name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) you shall not access Services in order to build similar or competitive products or services; (g) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services; (i) you shall not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections of the Services; (j) you will not take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on our technical infrastructure; and (k) you will not interfere with or attempt to interrupt the proper operation of the Services through any virus, device, information collection or transmission mechanisms, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means. Any future release, update or other addition to Services shall be subject to this Agreement. Zarty reserves all rights not granted in this Agreement. Any unauthorized use of Services terminates the licenses granted by Zarty pursuant to this Agreement. The foregoing sentence is not exclusive of any other rights or remedies that may be available to Zarty under law, equity, statute, or otherwise.
8. Third-Party Services and Links.
8.1. Third-Party Websites, Applications & Ads. The Services may contain links to third-party services such as third-party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Zarty does not control and is not responsible for Third-Party Links. Zarty provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, CONTENT, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any site other than the Zarty Site and Services. You should review applicable terms and policies, including the privacy and data gathering practices, of any reference sites and Third-Party Links.
8.2. App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that this Agreement is between you and Zarty and not with the App Store. Zarty, not the App Store, is solely responsible for Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.
8.3. Additional Terms for Apple Apps. With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. In addition, the following terms apply to any App Store Sourced Application:
8.3.1. You acknowledge and agree that (i) this Agreement is concluded between you and Zarty only, and not Apple, and (ii) Zarty, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
8.3.2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
8.3.3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Zarty and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Zarty.
8.3.4. You and Zarty acknowledge that, as between Zarty and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
8.3.5. You and Zarty acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Zarty and Apple, Zarty, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
8.3.6. You and Zarty acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
8.3.7. Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
8.4. Linking to the Zarty Site. You agree that if you include a link from any other web site to the Zarty Site, such link shall open in a new browser window and shall link to the full version of an HTML formatted page of the Zarty Site. You are not permitted to link directly to any image hosted on the Zarty Site, such as using an "in-line" linking method to cause the image hosted on the Zarty Site to be displayed on another web site. You agree not to download or use images hosted on the Zarty Site on another web site, for any purpose, including, without limitation, posting such images on another web site. You agree not to link from any other web site to the Zarty Site in any manner such that the Zarty Site, or any page of the Zarty Site, is "framed," surrounded or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Zarty Site be discontinued, and to revoke your right to link to the Zarty Site from any other web site at any time.
9. Indemnification. You agree to indemnify and hold Zarty, its parents, subsidiaries, affiliates, officers, employees, contractors, agents, business partners, and licensors (collectively, the “Zarty Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Zarty reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Zarty in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or your access to Services.
10. Disclaimer of Warranties and Conditions.
10.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE ZARTY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ZARTY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, FREE OF ANY OTHER HARMFUL COMPONENTS, OR ERROR-FREE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE ZARTY SERVICES (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
10.2. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10.3. ZARTY IS NOT RESPONSIBLE FOR ANY PRODUCTS THAT YOU PURCHASE OR RECEIVE FROM THIRD PARTIES. THIS INCLUDES BUT IS NOT LIMITED TO ANY CLAIMS OR ALLEGATIONS OF PRODUCT LIABILITY OR NEGLIGENCE FROM SUCH THIRD PARTY. THIS DISCLAIMER OF LIABILITY EXISTS EVEN IF ZARTY PROMOTES SUCH THIRD PARTY PRODUCTS OR SERVICES. FURTHER, ZARTY DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE QUALITY OR ACCURACY OF ADVERTISEMENTS FOR ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY THIRD PARTIES.
11. Limitation of Liability.
11.1. Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ZARTY PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT ZARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE ZARTY PARTIES ARE LIABLE TO YOU EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO ZARTY BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY. THE LAWS OF SOME OTHER STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE LIMITATIONS SET FORTH IN THIS SUBSECTION MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED. IF YOU ARE A USER IN THE EUROPEAN UNION, NOTHING IN THESE TERMS ATTEMPTS TO EXCLUDE OR LIMIT ZARTY’S LIABILITY FOR: (A) FRAUD OR FRAUDULENT MISREPRESENTATION; (B) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; OR (C) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
11.3. YOU ACKNOWLEDGE AND AGREE THAT ZARTY HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ZARTY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ZARTY. YOU ACKNOWLEDGE AND AGREE THAT ZARTY WOULD NOT BE ABLE TO PROVIDE THE ZARTY SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
11.4. User Content and Settings. The Zarty Parties assume no responsibility for the timeliness, deletion, mis-delivery, or failure to store any content, User communications, or personalization settings.
11.5. Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Zarty and you.
12. Procedure for Making Claims of Copyright Infringement - Digital Millennium Copyright Act Compliance.
12.1. Infringement Claims. If you are a copyright owner or an agent thereof, and believe that any User Content or other Third Party Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail).
12.1.1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
12.1.2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
12.1.3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Zarty Site or Services and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Zarty Site or Services;
12.1.4. (iv) Information reasonably sufficient to permit Zarty 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;
12.1.5. 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; and
12.1.6. 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.
Zarty's designated Copyright Agent to receive notifications of claimed infringement is: [Matt Robinson, support@zarty.com, P.O. Box 2373, Palm Beach, FL 33480 ]
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFRINGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
12.2. Notice And Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below.
12.2.1. We may, at our discretion, deny access to the Zarty Site or Services by, or disable and/or terminate the accounts of, Users who may be infringers.
12.3. Copyright Counter-Notices. If content you posted on the Zarty Site or Services was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
12.3.1. To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
12.3.2. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
12.4. Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):
12.4.1. Identify the specific URLs of (or other information sufficient to allow us to identify) material that Zarty has removed or to which Zarty has disabled access.
12.4.2. Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your Zarty account.
12.4.3. Provide a statement that you consent to the jurisdiction of the Southern District of Florida and the Federal District Court for the judicial district in which your address is located (if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above, or an agent of such person.
12.4.4. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
12.4.5. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address: [Matt Robinson, support@zarty.com, P.O. Box 2373, Palm Beach, FL 33480 ]
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Zarty Site or Services. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
12.4.6. (e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Zarty Site or Services is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of Florida. If you do wish to file a counter-notice, you should follow the process set forth above under the heading "Elements of Counter-Notification."
12.4.7. Disclaimer: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
13. Termination. At its sole discretion, Zarty may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Zarty reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Zarty for any purchases will remain due.
14. International Users. Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Zarty intends to announce or promote the availability of such services or content in your country. Services are controlled and offered by Zarty from its facilities in the United States of America. Zarty makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
15. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate most disputes with Zarty and limits the manner in which you can seek relief from us.
15.1. Applicability of Arbitration Agreement. You agree that any dispute between you and us (or other Zarty Parties) relating in any way to the Services or this Agreement, or arising under the Telephone Consumer Protection Act of 1991, 47 U.S.C. section 227, or other state or federal law or regulation governing calls or text messages, will be resolved by binding arbitration, rather than in court, except that (1) you and the Zarty Parties may assert claims in small claims court if the claims qualify; and (2) you or the Zarty Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
15.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Zarty, [Zarty LLC, P.O. Box 2373, Palm Beach, FL 33480 ]. The arbitration will be conducted by American Arbitration Association (“AAA”), an established alternative dispute resolution provider. The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 800-778-7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Zarty will pay the additional cost. A request for payment of fees should be submitted to AAA along with your form for initiating the arbitration, and Zarty will make arrangements to pay all necessary fees directly to AAA. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $25,000. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3. Authority of Arbitrator. Without limiting the scope of Section 15.1, the arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and the Zarty Parties. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4. Waiver of Jury Trial. YOU AND the Zarty parties HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Zarty Parties are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS BY OR AGAINST ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF OR AGAINST ANY OTHER USER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 15.5’s limitations as to a given claim for relief, then the applicable claim, and only that applicable claim, must be severed from the arbitration and brought into the state or federal courts located in Florida in accordance with Section 16.4. All other claims shall be arbitrated.
15.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Zarty, [Zarty LLC, P.O. Box 2373, Palm Beach, FL 33480 ], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us or other Zarty Parties.
15.7. Severability. Except as provided in Section 15.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8. Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Zarty.
15.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Zarty makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Zarty at the following address: Zarty, [Zarty LLC, P.O. Box 2373, Palm Beach, FL 33480 ].
15.10. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE ZARTY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If, for any reason, we believe, have reason to believe, suspect or are notified of any act, omission or circumstances which may or could (i) compromise or endanger the health, well-being or safety of any person, (ii) cause or lead to damage to persons or property (tangible or intangible), (iii) adversely affect, infringe upon or misappropriate the rights of others, (iv) harass or interfere with any other user or person, firm or enterprise, (v) interfere with or bypass our security or other protective measures applicable to our systems, networks and communications capabilities, (vi) breach or violate this Agreement, or (vii) violate any law or regulation, we have the right, reserving cumulatively all other rights and remedies available to us at law, in equity and under this agreement with you, to report and provide information to any and all regulatory and law enforcement authorities and agencies and take any action permitted by law.
16. General Provisions.
16.1. Electronic Communications. The communications between you and Zarty use electronic means, whether you visit Services or send Zarty e-mails, or whether Zarty posts notices on Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Zarty in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to this Agreement that Zarty provides to you electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect your statutory rights.
16.2. Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Zarty prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3. Force Majeure. Zarty shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, pandemics, epidemics, stay-at-home orders, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.4. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Zarty agree that all claims and disputes arising out of or relating to this Agreement or the Services will be litigated exclusively in the state courts located in Palm Beach County, Florida or federal courts located in the Southern District of Florida.
16.5. Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Florida, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The Uniform Computer Information Transactions Act does not apply to this Agreement.
16.6. Changes. We will notify you of changes to this Agreement by posting the amended terms on the Zarty website at least thirty (30) days before the effective date of the changes. If you have provided us with your email address, we will also notify you of material changes to this Agreement by sending an email at least thirty (30) days before the effective date of the changes to the email address you most recently provided to us. We encourage you to keep the email address you provide to us current, and to promptly notify us of any changes to your email address, so that you may receive any notices we send to you regarding material changes to this Agreement . If you do not agree to the new Agreement, you should stop using the Zarty Services, and if you are a registered user, you may cancel your account with us within the thirty (30) day period by contacting us at support@zarty.com and you will not be bound by the new terms. Otherwise, the new terms will take effect after thirty (30) days. Zarty employees do not have the right to modify this Agreement orally or otherwise. If any employee of Zarty offers to modify the provisions of this Agreement except using the process described above, he or she is not acting as an agent for Zarty or speaking on our behalf. Zarty may make changes to or discontinue any of the media, web communities, products, or services available within via Zarty Services at any time, and without notice. The media, products, or services on the Zarty Services may be out of date, and Zarty makes no commitment to update these materials on the Zarty Services.
16.7. Notice. Where Zarty requires that you provide an e-mail address, you are responsible for providing Zarty with your most current e-mail address. In the event that the last e-mail address you provided to Zarty is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Zarty dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Zarty at the following address: Zarty, [Zarty LLC, P.O. Box 2373, Palm Beach, FL 33480 ]. Such notice shall be deemed given when received by Zarty by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.8. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: [Zarty LLC, P.O. Box 2373, Palm Beach, FL 33480 ], Email - support@zarty.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.9. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.10. Severability. Subject to Section 15.7, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.11. Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
16.12. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.13. No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Zarty as a result of this Agreement or use of the Zarty Services. You further acknowledge that by submitting User Content or other Third Party Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Zarty other than pursuant to this Agreement.
16.14. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
This Terms of Use Agreement was last revised and is effective as of 08/18/2020].