1. These Terms
1.1 WHAT DO THESE TERMS COVER? THESE TERMS ARE THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO, AND USE OF, THE SITE.
1.3 WHAT TO DO IF YOU DON’T WANT TO ACCEPT THESE TERMS? IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, PLEASE DO NOT ACCESS OR USE THIS WEBSITE, THE APPLICATION, OR THE SERVICES.
1.4 WHICH PROVISIONS OF THE TERMS SHOULD YOU PAY PARTICULAR ATTENTION TO? THE KEY TERMS THAT YOU SHOULD CONSIDER IN PARTICULAR DETAIL ARE: 4. CHANGES TO THESE TERMS; 17. OUR RESPONSIBILITY FOR LOSS OR DAMAGE; AND 19. TERM AND TERMINATION.
2.1 Service. The Services enable Individual Users to obtain feedback from, and provide feedback to, other Individual Users within their Zugata Network (the “Continuous Feedback Module”). In the event that an Enterprise purchases a subscription to the Zugata Premium Services (a “Subscriber”), the Subscriber will receive access to anonymized reports and data about Users generated from data collected through the Continuous Feedback Module (“Continuous Feedback Data and Report”) and access to a performance assessment module (“Performance Assessment Module”) which the Subscriber can use to obtain employee feedback for performance reviews (“Performance Reviews”). These Terms apply to Individual Users and to Enterprise Users that have not purchased Premium Services.
2.2 Who we are. Zugata, Inc. is a company registered in the State of Delaware, with entity registration number C3725692 with its principal place of business at 425 Sherman Ave., Suite 220, Palo Alto, CA 94306.
2.3 How to contact us. You can contact us by writing to us at [firstname.lastname@example.org]. 2.4 How we may contact you. f we have to contact you we may do so by telephone or by email to the address you provided when you registered for an Account.
2.4 How we may contact you. If we have to contact you we may do so by telephone or by email to the address you provided when you registered for an Account.
4.1 “Enterprise” means the legal entity that owns the rights to the domain included in the email address that you provide when you create an Account with Zugata (“Your Enterprise Email Address”). he Enterprise will generally be your employer, or an identified subgroup (i.e. division, department, etc.) within your employer. “Enterprise” does not include a legal entity that operates an email
service (e.g., Hotmail, Yahoo, etc.) (an “Email Service Entity”) unless Zugata has an agreement
4.2 “Enterprise Account” means an Account created by an Enterprise.
4.3 “Enterprise Email Account” means the email messages and meta data available at your Enterprise Email Address.
4.4 “Zugata Network” is the network for using the Services defined by an Enterprise’s domain name, but excluding domains owned by Email Service Entities. All users who sign up with an email address that includes a domain owned by the same Enterprise are a part of the same Zugata Network. A “Zugata Network” can be either a “Zugata Basic Network” or a “Zugata Enterprise Network”.
4.5 “Zugata Basic Network” is a Zugata Network (a) for which the Enterprise has not registered an Enterprise Account with Zugata or (b) for which an Enterprise has registered an Enterprise Account with Zugata but has not purchased the Premium Services.
4.6 “Zugata Enterprise Network” is a Zugata Network for an Enterprise that has registered an Enterprise Account with Zugata and for which the Enterprise has purchased the Premium Services. A Zugata Network is a Zugata Enterprise Network only during the term for which 128906045 v2 the Enterprise has purchased the Premium Services. Upon expiration or termination of the Premium
Services, the Zugata Enterprise Network automatically becomes a Zugata Basic Network.
4.7 “Zugata Premium Services” are the paid subscription services offered by Zugata to Enterprises.
5. Changes to the Website and These Terms.
5.2 More significant changes. If we make any material changes, and you have registered with us to create an Account (as defined in Section 6.1 below) we will also send an email to you at the last email address you provided to us pursuant to the Terms.
5.3 Any changes to the Terms will be effective immediately for new Users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such
changes on the Website or thirty (30) days after dispatch of an email notice of such changes to Registered Users (as defined in Section 6.1 below). Zugata may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
6. About the Services.
6.1 Enterprise Users. If you have created an Enterprise Account with Zugata, you have the right to designate one or more Authorized Users, who will be provided with access rights which will enable the Authorized User to customize the Enterprise’s Zugata Basic Network as permitted by Zugata in its sole discretion, including but not limited to, changing the Enterprise logo on the Zugata Basic Network, inviting employees to use the Zugata Basic Network, deleting Users of the Zugata Basic Network who are no longer employed by the Enterprise, customizing skills, and adding job titles. Enterprise Users who have not purchased Premium Services will not have access to Personal Data of Individual Users within its Zugata Basic Network, including but not limited to Feedback Messages or to Continuous Feedback Data and Reports.
6.2 Individual Users. The Services will request that your provide feedback of other individuals within your Zugata Network (“Your Feedback Messages About Other Users”) and will ask other Users within your Zugata Network to send you feedback (”Other Users Feedback Message(s)” and, together with Your Feedback Messages About Other Users, “Feedback Messages”).
(a) Feedback Messages are Opinions. Feedback Messages represent subjective opinions of other Users within your Zugata Network. Zugata is not responsible for the content of the Feedback Messages provided by users.
(b) Other Users Feedback Messages About You. If you wish receive Other Users Feedback Messages about you, you must provide us with the password (“Password”) for Your Enterprise Email Account or any instant messaging system that your Enterprise uses for business communications and that we support (“Supported Enterprise Messaging System”). You confirm that you are entitled to grant us access to your Enterprise E-Mail Account or Supported Enterprise Messaging System (including, but not limited to, for use for the purposes described herein), and the associated Password, without breach by you of any of the terms and conditions that govern your use of the applicable Enterprise Email Account or Supported Enterprise Messaging System. We will use this information to collect email and calendar meta data (consisting of the To, From, cc, bcc, and Timestamp Fields and referred to herein as “Your Meta Data”) to determine the Users within your Enterprise with whom you have communicated and to rank
those Users based on our proprietary algorithms that check the frequency of your communications with that User. We will not retain on our servers the Password that you provide to us after we have obtained Your Meta Data, although we will periodically ask you to provide your Password so that we can update Your Meta Data following the process described above. Once you have linked your Enterprise Email Account or Supported Enterprise Messaging Account to the Services, our Application will solicit Users
within your Zugata Network to send you Other Users Feedback Messages and we will use these Other Users Feedback Messages to create graphs or other charts that will be displayed on your Personal Profile Page (“Your Personal Profile Graphs”).
(c) Unlocking Feedback Messages. The Services operate on a "give to get" model. Zugata typically seals your access to older Other Users Feedback Messages and requires you to provide more of Your Feedback Messages About Other Users in order to unseal both older and new Other Users Feedback Messages about you.
(d) Restriction on Disclosing Your Identity in Feedback Messages. If you are a member of a Zugata Basic Network, the Feedback Messages that you send and receive will be anonymous and you shall not disclose your identity in Your Feedback Messages About Other Users or otherwise indicate your identity to Users to whom you have provided such feedback. Notwithstanding the foregoing, if your Zugata Network is or subsequently becomes a Zugata Enterprise Network and your Enterprise exercises its
right to require, by sending notice to Zugata, that all Feedback Messages include the name of the sender, the foregoing restrictions shall be of no further force and effect after the date on which Zugata notifies affected Users of that Zugata Enterprise Network that their Feedback Messages will no longer be anonymous.
7. Use of the Services and Zugata Properties. The Application, the Software, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (collectively, the “Zugata Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Zugata grants User a
limited license to reproduce portions of Zugata Properties for the sole purpose of using the Services for User’s personal or internal business purposes. Unless otherwise specified by Zugata in a separate license, User’s right to use any Zugata Properties is subject to the Terms.
7.1 Application License. Subject to your compliance with the Terms, Zugata grants you and/or User a license to download, install and use a copy of the Application on one or more mobile devices or computers that User owns or controls and to run such copy of the Application, on the basis that this licence is:
(a) nonexclusive – other people can access and use the Site;
(b) nontransferable – you can’t pass this right to someone else;
(c) non-sublicensable you can’t license this right to someone else;
(d) revocable – we have the right to remove your ability to use the Website, Services or Application in accordance with these Terms ; and
(e) limited – the licence is solely for you and/or User’s own personal or internal business purposes and does not extend beyond what has just been described above.
Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you and/or User will only use the App Store Sourced Application (i) on an Applebranded 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.
7.2 Zugata Software. Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms
may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Zugata provide you with any tangible copy of any Software. Zugata shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the
(a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section, tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following
sentence). If the Software is a prerelease version then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Terms. Subject to your compliance with the Terms, Zugata grants you:
(a) a nonassignable you can’t assign this right to someone else;
(b) nontransferable you can’t pass this right to someone else;
(c) non-sublicensable - you can’t license this right to someone else;
(d) revocable we have the right to remove your ability to use the Services, Website
and Application in accordance with these Terms;
(e) nonexclusive other people can access and use the Site;
license to use the Software for the sole purpose of enabling you to use the Services in the
manner permitted by the Terms. Some Software may be offered under an open source
license that we will make available to you. There may be provisions in the open source
license that expressly override some of the provisions in these Terms.
7.3 Update. Zugata may from time to time develop patches, bug fixes, updates, upgrades and other modifications to the performance of the Services, the Application or the Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. By continuing to use the Services, you consent to these automatic
updates. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and you agree to promptly install any Updates that we provide. Your continued use of the Services is your agreement to these Terms with respect to the Services, the Application and/or the Software.
7.4 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Zugata Properties or any portion of Zugata Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark,
logo, or other Zugata Properties (including images, text, page layout or form) of Zugata; (c) you shall not use any metatags or other “hidden text” using Zugata’s 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 Zugata Properties 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 any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary
for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Zugata Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Zugata Properties 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 Zugata Properties, and (i) you shall not enable access to Zugata Properties by any unauthorized third party application. Any future release, update or other addition to Zugata Properties shall be subject to the Terms. Zugata, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Zugata Properties terminates the licenses granted by Zugata pursuant to the Terms.
7.5 Third-Party Materials. As a part of Zugata Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Zugata to monitor such materials and that you access these materials at your own risk.
7.6 Evaluation License. Notwithstanding any other provision in these Terms, if you are obtaining access to all or any portion of the Zugata Properties on an “evaluation” or “trial” basis, you acknowledge and agree that you are receiving access to such Zugata Properties “ASIS,” without indemnification, warranty, obligation to provide support, of any kind, express or implied.
8.1 Registering Your Account. In order to access certain features of Zugata Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”).
8.3 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You confirm that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Zugata Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. If you are an Enterprise, you will be asked to name one or more Authorized Users, and Zugata will issue passwords to such Authorized Users. You are responsible for all activities that occur under your Account, including the actions of your Authorized Users. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Zugata Properties by minors. You agree that neither your nor, in the case of Enterprise Users, your Authorized Users may share your Account or passwords with anyone, and you agree to (1) notify Zugata immediately of any unauthorized use of such passwords or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Zugata has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Zugata has the right to suspend or terminate your Account and refuse any and all current or future use of Zugata Properties (or any portion thereof) by your, or in the case of Enterprise Users, your Authorized Users. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Zugata reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Zugata Properties if you have been previously removed by Zugata, or if you have been previously banned from any of Zugata Properties.
8.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Zugata Properties, including but not limited to, a mobile device that is suitable to connect with and use Zugata Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Zugata Properties.
9. Responsibility for Content.
9.1 Types of Content. “Content” means all text, graphics, pictures, files, video and other materials. ou acknowledge that all Content, including Zugata Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Zugata, are entirely responsible for all Content, including Your Feedback Messages About Other Users, that you upload, post, email, transmit or otherwise make available through Zugata Properties (“Your Content”), and that you and other Users of Zugata Properties, and not Zugata, are similarly responsible for all Content they Make Available through Zugata Properties, including all Feedback Messages (“User Content”).
9.2 Enterprise. You acknowledge that you shall adhere to your Enterprise’s policies, guidelines, and procedures concerning the Content that you Make Available through the Zugata Properties, regardless of whether your Zugata Network is a Zugata Enterprise Network or a Zugata Basic Network.
9.3 No Obligation to PreScreen Content. You acknowledge that Zugata has no obligation to prescreen Content (including, but not limited to, User Content), although Zugata reserves the right in its sole discretion to prescreen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. In the event that Zugata prescreens, refuses or removes any Content, you acknowledge that Zugata will do so for Zugata’s benefit, not yours. Without limiting the foregoing, Zugata shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
9.4 Storage. Unless expressly agreed to by Zugata in writing elsewhere, Zugata has no obligation to store any of Your Content that you Make Available on Zugata Properties. Zugata has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Zugata Properties.
10.1 Zugata Properties. Except with respect to Your Content and User Content, you agree that Zugata and its suppliers own all rights, title and interest in Zugata Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Zugata Properties.
10.2 Trademark. Zugata’s name and other related graphics, logos, service marks and trade names used on or in connection with Zugata Properties or in connection with the Services are the trademarks of Zugata and may not be used without permission in connection with any thirdparty products or services. Other trademarks, service marks and trade names that may appear on or in Zugata Properties are the property of their respective owners.
10.3 Other Content. Except with respect to Your Content, and with respect to Other Users Feedback Messages about you (which shall be treated as your Confidential Information pursuant to Section 13), you agree that you have no right or title in or to any Content that appears on or in Zugata Properties.
10.4 Your Content. Zugata does not claim ownership of Your Content. However, when you as a User Make Available Your Content through the Zugata Properties, you confirm that you own and/or have a royaltyfree, perpetual, irrevocable, worldwide, nonexclusive right and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. Moral rights waiver. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to Your Content.
10.5 License to Your Content. Subject to any applicable account settings that you select, you grant Zugata a fully paid, royaltyfree, perpetual, irrevocable, worldwide, royaltyfree, nonexclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Users within your Zugata Network. You agree that you, not Zugata, are responsible for all of Your Content that you Make Available on or in Zugata Properties.
10.6 Zugata Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Zugata through its suggestion, feedback, wiki, forum or similar pages (“Zugata Feedback”) is at your own risk and that Zugata has no obligations (including without limitation obligations of confidentiality) with respect to Zugata Feedback. You confirm and promise that you have all rights necessary to submit the Zugata Feedback. You hereby grant to Zugata a: (a) fully paid and royalty-free we don’t have to pay you (either now or in the future) to use Your Content in the manner described above; (b) perpetual – our right to use Your Content does not expire; (c) irrevocable once agreed, you cannot remove or restrict our right to use Your Content as described above' (d) worldwide we can use Your Content in manner described above anywhere in the world; (e) nonexclusive you and, if you let them, other people can use Your Content; and (f) fully sublicensable you allow us to authorise, solely for the purposes of including Your Content in the Site, other business and individuals to use the licence described above, right and license to use, reproduce, perform, display, distribute, adapt, modify, reformat, create derivative works of, and otherwise commercially or non commercially exploit in any manner, any and all Zugata Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Zugata Properties.
11. User Conduct. As a condition of use, you agree not to use Zugata Properties for any purpose that is prohibited by the Terms or by applicable law.
11.1 Protection of our reputation and third party rights. You shall not (and shall not permit any third-party) to take any action or make available any Content on or through Zugata Properties 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, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk email; (iv) involves commercial activities and/or sales without Zugata’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Zugata.
11.2 Protection of our systems. In addition, you agree not to take any action or make available any Content on or through Zugata Properties that: (i) interferes with or attempts to interfere with the proper functioning of Zugata Properties or uses Zugata Properties in any way not expressly permitted by the Terms; or (ii) attempts or engages in, any potentially harmful acts that are directed against Zugata Properties, including but not limited to violating or attempting to violate any security features of Zugata Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Zugata Properties, introducing viruses, worms, or similar harmful code into Zugata Properties, or interfering or attempting to interfere with use of Zugata Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” Zugata Properties.
12. Investigations. Zugata may, but is not obligated to, monitor or review Zugata Properties and Content at any time. Without limiting the foregoing, Zugata shall have the right, in its sole discretion, to remove any Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Zugata does not generally monitor user activity occurring in connection with Zugata Properties or Content, if Zugata becomes aware of any possible violations by you of any provision of the Terms, Zugata reserves the right to investigate such violations, and Zugata may, at its sole discretion, immediately terminate your license to use Zugata Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
13. 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 (“App Store”). You acknowledge that the Terms are between you and Zugata and not with the App Store. Zugata, not the App Store, is solely responsible for Zugata Properties, 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 Zugata Properties, 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 Zugata Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
14.1 Confidential Information. The term “Confidential Information” means any and all information and data that a disclosing party (“Disclosing Party”) makes available to the receiving party (“Receiving Party”) that is not generally known to the public, which the Receiving Party knows or reasonably should have known is the Disclosing Party’s confidential or proprietary information. Your Confidential Information shall include Other Users Feedback Messages about you, Your Personal Profile Page, your Passwords and Your Meta Data, and Your Personal Profile Graphics. Zugata Confidential Information shall include any information about the Zugata Properties which is not publicly available. Information will not constitute Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of these Terms; or (iv) is lawfully received from a third party without obligation of confidentiality. Further, it will not be a violation for the Receiving Party to disclose the Disclosing Party’s Confidential Information in response to a subpoena or other legal process served upon the Receiving Party or where applicable law or regulation requires the disclosure of such information.
14.2 Generally. During your use of the Zugata Properties, both Zugata and you will have access to certain Confidential Information of the other party. The Receiving Party agrees not to use or disclose (or seek to induce others to use or disclose) any Confidential Information except as necessary to exercise its rights or perform its obligations under these Terms. The Receiving Party will use commercial efforts to limit access to the Confidential Information to those who have a need to know such information to use or provide the Services. The Receiving Party will protect the Disclosing Party’s Confidential Information using the same degree of care that the Receiving Party uses with respect to its own confidential information, but in no event with less than reasonable care.
14.3 Confidential Content. You agree that you are solely responsible for any obligations of confidentiality you may owe to the Enterprise (if you are an Individual User) or to any other third party regarding the existence of, or any other information (including you Enterprise Email Account, Other Supported Enterprise Messaging Systems, your Passwords, Your Meta Data, and Your Feedback Messages About Other Users) that you Make Available through the Zugata Properties (“Confidential Content”), and such information will be considered Your Content.
15. Interactions with Other Users.
15.1 User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Zugata reserves the right, but has no obligation, to intercede in such disputes. You agree that Zugata will not be responsible for any liability incurred as the result of such interactions.
15.2 Content Provided by Other Users. Zugata may provide you with User Content provided by other Users as a part of the Services. Zugata is not responsible for and does not control User Content. Zugata has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content.
16. ThirdParty Websites and Software Components.
16.1 Third-Party Websites. You may be able to access third-party websites or services via the Services. Zugata isn’t responsible for third-party websites, services, or material available through those third-party services. You are solely responsible for your dealings with third parties (including advertisers). Your use of third-party websites or services may be subject to that third party’s terms and conditions.
16.2 Third-Party Software Components. The software provided by us to you as part of the Services may contain third party software components. Unless otherwise disclosed in that software, Zugata, not the third party, licenses these components to you under Zugata license terms and notices.
17. Fees. There is no charge for access to and use of the Zugata Properties by Individual or Enterprise Users of a Zugata Basic Network. However, Zugata reserves the right to charge fees for access to and use of all or portions of the Zugata Properties, including access to a Zugata Basic Network, at a later date.
18. Our Responsibility For Loss Or Damage
18.1 TO INDIVIDUAL USERS
(a) THE SERVICES ARE NOT BESPOKE TO YOU. YOU ACKNOWLEDGE THAT THE SERVICES, WEBSITE AND APPLICATION HAVE NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE SERVICES MEET YOUR REQUIREMENTS.
(b) THE ZUGATA PARTIES ARE RESPONSIBLE TO YOU ONLY FOR FORESEEABLE LOSS AND DAMAGE CAUSED BY US. IF WE FAIL TO COMPLY WITH THESE TERMS, WE ARE RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREAKING THESE TERMS OR OUR FAILING TO USE REASONABLE CARE AND SKILL, BUT WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT IS NOT FORESEEABLE. LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THESE TERMS ARE ENTERED INTO AND BOTH WE AND YOU KNEW IT MIGHT HAPPEN.
(c) WE ARE NOT LIABLE FOR BUSINESS LOSSES. AS NOTED ABOVE, WE ONLY MAKE THE SERVICES, WEBSITE AND APPLICATION AVAILABLE FOR YOUR PERSONAL AND INTERNAL BUSINESS USE. IF YOU USE THE SERVICES, WEBSITE OR APPLICATION FOR ANY COMMERCIAL, BUSINESS OR RESALE PURPOSES WE WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.
(d) NO LIABILITY FOR DAMAGE CAUSED BY UNAUTHORISED ACCESS. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF UNAUTHORISED ACCESS TO YOUR ACCOUNT WHICH IS NOT WITHIN OUR REASONABLE CONTROL.
18.2 TO ENTERPRISE USERS
You agree to indemnify and hold Zugata, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Zugata Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content, including but not limited to Your Feedback Messages About Other Users; (b) your use of, or inability to use, Zugata Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Zugata 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 Zugata in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Zugata Properties.
(b) Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF ZUGATA PROPERTIES IS AT YOUR SOLE RISK, AND ZUGATA PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ZUGATA 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 FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. ZUGATA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE OTHER USERS FEEDBACK MESSAGES THAT YOU RECEIVE IS ACCURATE OR TRUTHFUL OR OTHERWISE COMPLIES WITH THE OBLIGATIONS IMPOSED ON USERS PURSUANT TO THE TERMS; (2) THE ZUGATA PROPERTIES WILL MEET YOUR REQUIREMENTS; (3) YOUR USE OF ZUGATA PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERRORFREE; (4) THE RESULTS THAT MAY BE OBTAINED FROM USE OF ZUGATA PROPERTIES, INCLUDING BUT NOT LIMITED TO YOUR PERSONAL PROFILE GRAPHS, WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN ZUGATA PROPERTIES WILL BE CORRECTED. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT ZUGATA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ZUGATA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THE ENTERPRISES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF ZUGATA PROPERTIES. YOU UNDERSTAND THAT ZUGATA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE ACCURACY OR TRUTHFULNESS OF OTHER USERS FEEDBACK MESSAGES ABOUT YOU.
No Liability for Other Users Feedback Messages About You. YOU ACKNOWLEDGE AND AGREE THAT ZUGATA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ZUGATA PARTIES LIABLE, FOR OTHER USERS FEEDBACK ABOUT YOU.
(c) Limitation of Liability.
SUBJECT TO SECTION 17.3 YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ZUGATA PARTIES BE LIABLE FOR ANY:
i. LOSS OF PROFITS OR REVENUE;
ii. LOSS OF DATA; OR
iii. INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES,
ARISING OUT OF OR IN CONNECTION WITH ZUGATA PROPERTIES OR USER CONTENT OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT ZUGATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF ZUGATA PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE ZUGATA PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED THROUGH ZUGATA PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER CONTENT, INCLUDING BUT NOT LIMITED TO FEEDBACK MESSAGES; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON ZUGATA PROPERTIES, INCLUDING BUT NOT LIMITED TO FEEDBACK MESSAGES; OR (5) ANY OTHER MATTER RELATED TO ZUGATA PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
User Content. ZUGATA PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY OR FAILURE TO STORE ANY USER CONTENT (INCLUDING, BUT NOT LIMITED TO, FEEDBACK MESSAGES), OTHER USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
18.3 TO ENTERPRISE USERS AND INDIVIDUAL USERS
(a) Cap on Liability. SUBJECT TO SECTION 17.3, UNDER NO CIRCUMSTANCES WILL ZUGATA PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY ZUGATA AS A RESULT OF YOUR USE OF ZUGATA PROPERTIES DURING THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID ZUGATA ANY AMOUNTS DURING SUCH PERIOD, ZUGATA’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY POUNDS STERLING (£50) OR ONE HUNDRED DOLLARS ($100 USD).
SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IF YOUR JURISDICTION DOESN’T ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES.
NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE ZUGATA'S LIABILITY FOR:
i. DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS;
ii. FRAUD OR FRAUDULENT MISREPRESENTATION; OR
iii. ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
19. Violations. If Zugata becomes aware of any possible violations by you of the Terms, Zugata reserves the right to investigate such violations and to take actions including removing Your Content from the Services, suspending or cancelling your Account or your access to the Services, or referring such activity to appropriate authorities. Content that is deleted may be irretrievable. If, as a result of the investigation, Zugata believes that criminal activity has occurred, Zugata reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Zugata is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Zugata Properties, including Your Content, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; (5) protect the rights, property or personal safety of Zugata, its Users or the public, or (6) in connection with all enforcement actions or to government officials, as Zugata in its sole discretion believes to be necessary or appropriate.
20. Term and Termination.
20.1 Term; Termination. These Terms will remain in effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, Zugata may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Zugata in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules.
20.2 Effect of Termination. Upon termination of these Terms, your Account and your right to use the Zugata Properties will automatically terminate. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
21. General Provisions.
21.1 Electronic Communication. The communications between you and Zugata use electronic means, whether you visit Zugata Properties or send Zugata emails, or whether Zugata posts notices on Zugata Properties or communicates with you via email. With your consent, we may send you marketing emails and newsletters. Our marketing emails tell you how to “opt-out.” If you opt out, we may still send you non-marketing emails. Non-marketing emails include emails about your accounts and our business dealings with you. For contractual purposes, you agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zugata provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
21.2 Nobody else has any rights under these Terms. These Terms are between you and us. No other person shall have any rights to enforce any of its terms
21.3 Events outside our control. Zugata 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, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
21.4 Compliance. If you believe that Zugata has not adhered to the Terms, please contact Zugata by emailing us at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
21.5 Governing Law and Jurisdiction.
(a) This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
(b) The Parties irrevocably agree that the courts of England and Wales shall have nonexclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including noncontractual disputes or claims). Notwithstanding the foregoing, nothing shall prevent either Party from seeking equitable relief in any court of competent jurisdiction
(c) This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of law principals that require the application of the law of a different jurisdiction.
(d) Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Zugata’ principal place of business is located for any lawsuit filed there against Subscriber by Zugata arising from or related to this Agreement.
(e) The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Subscriber shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Zugata Software or Documentation.
21.6 Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. These Terms, and any contract between us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
21.7 Notice. Where Zugata requires that you provide an email address, you are responsible for providing Zugata with your most current email address. In the event that the last email address you provided to Zugata is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Zugata’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Zugata at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by Zugata by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
21.8 Even if we delay in enforcing these Terms, we can still enforce it late. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date
21.9 If a court finds part of these Terms illegal, the rest will continue in force. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
21.10 Export Control. You may not use, export, import, or transfer Zugata Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Zugata Properties, and any other applicable laws. In particular, but without limitation, Zugata Properties may not be exported or reexported (a) into any United States, UN or EU embargoed countries, or (b) to anyone on a U.S. Treasury Department, UN or EU restricted list. By using Zugata Properties, you confirm and promise that (i) you are not located in a country that is subject to a U.S. Government, UN or EU embargo, or that has been designated by the U.S. Government, UN, or EU as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government, UN or EU list of prohibited or restricted parties. You also will not use Zugata Properties for any purpose prohibited by applicable law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Zugata are subject to export control laws and regulations. You shall comply with these laws and regulations and shall not, without prior U.S. government, UN or EU authorization, export, reexport, or transfer Zugata products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
21.11 Accessing and Download the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Terms are concluded between you and Zugata only, and not Apple, and (ii) Zugata, 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.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) 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 Zugata 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 Zugata.
(d) You and Zugata acknowledge that, as between Zugata 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 or similar legislation.
(e) You and Zugata 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 Zugata and Apple, Zugata, 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 the Terms.
(f) You and Zugata acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application. 21.12 Consumer Complaint. 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) 9525210.
End of Terms