These Terms of Service (the “Terms of Service”) govern your use or receipt of the Services. “We” or “us” or “our” or “Zingit” means Zingit Solutions, Inc. “You” or “your” means the person or entity indicating acceptance of these Terms of Service or using the Services. We may update these Terms of Service at any time with immediate effect. By accessing and using Zingit, completing the registration process, or signing up for an account, you are agreeing to these Terms of Service.
“Zingit Materials” means any documentation, user guides or other similar materials provided by Zingit to you in connection with your use of the Zingit Service.
“Zingit Service” means any of the Zingit set of SaaS solutions that are developed, operated, and maintained by Zingit (and its third-party service providers) and that are subscribed to through an Zingit branded or controlled website (or Zingit partner website) that includes a link to these Terms of Service. The definition of Zingit Service does not include any separate professional Services (as defined below) that may be purchased by you from Zingit.
“Subscription Agreement” means any online or written subscription agreement for Services signed by you and submitted to Zingit, and any future purchase order, service agreement, addendum or order form that makes reference to this Agreement. The Zingit Subscription Agreement(s) shall be governed by the Terms and Conditions of this Agreement and are incorporated herein by reference.
“PHI” means: (i) “protected health information” as defined in 45 CFR § 160.103; and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).
“Professional Services” means any implementation, training or other professional services provided by Zingit to you pursuant to the terms of a Subscription Agreement.
“Services” means Zingit Services and Professional Services.
“Subscription Term” means the Initial Term and each Renewal Term.
“TCPA” means the Telephone Consumer Protection Act of 1991, as amended, and all relevant regulations promulgated thereunder.
“Third Party Content” means the content, including software code that a Zingit partner or other third party may bundle with the Zingit Service, for a specific market or niche offering.
“Your Data” means data that you or your users upload to the Zingit Service.
2. TERM & TERMINATION
2.1 Subscription Term. Unless specified otherwise in a signed Subscription Agreement between you and Zingit, the initial term of your subscription to a Zingit Service will begin on the submission or execution of your Subscription Agreement and continue for the period set out therein (the “Initial Term”). At the end of the Initial Term, your subscription to the applicable Zingit Service will automatically renew for a consecutive periods of equal duration unless either party gives the other party written notice of its intent not to renew at least 15 days before the expiration of the then current Subscription Term for monthly subscription terms and 30 days before the expiration of the then current Subscription Term for annual subscription terms.
2.2 Termination for Material Breach. If Zingit confirms after prompt written notice from Customer that Zingit Service has experienced a material loss of business critical functionality caused by Zingit more than three (3) times during any rolling twelve (12) month period (“Repeated Severe Issues”) and Zingit is unable to cure such alleged issue(s) within thirty (30) days of Customer’s written notice to Zingit after the third instance, then, Customer may terminate the applicable Subscription Agreement upon written notice to Zingit (“the Date of Termination”).
2.3 Effect of Termination. Upon expiration or any termination of a Subscription Agreement, all Fees then due and payable to Zingit must be paid in full. Contingent upon its receipt of all such Fees, Zingit will continue to make your Data available through the termination date. If a Subscription Agreement with an annual Subscription Term is terminated in accordance with Section 2.2 above, then Customer shall pay for all fees up to the Date of Termination and shall be relieved of its remaining payment obligations for the remainder of the Subscription Agreement.
3. NOTICE TO MINORS
Zingit aims to fully comply with all federal laws and, thus, at a minimum, you must be at least eighteen (18) years of age to use the Services. If you are a minor, you must obtain the consent of your parent or legal guardian to use the Services and agree to these Terms of Service. No one under eighteen (18) years of age may provide any personal information, and Zingit does not knowingly collect personal information from children under the age of eighteen (18).
If you are under eighteen (18) years of age, please do not send any information about yourself to us, or to anyone else through the Services. Personal information includes, but is not limited to, your name, address, telephone number, or email address. If we learn we have collected any personal information from anyone under the age of eighteen (18), we will immediately delete that information per the requirements of the Children’s Online Privacy Protection Act and any other applicable laws. If you believe we have received information from or about a child under the age of eighteen (18), please contact us at firstname.lastname@example.org with a subject heading Terms of Service.
4. ZINGIT TECHNOLOGY
Zingit may make available technology to you on the Services. These include, but are not limited to the following:
4.1 Text Appointment Reminders. Zingit may provide an optional appointment reminder service, which may include additional related fees. You must obtain all necessary consents from the parties to be contacted via text prior to utilizing our text appointment reminder Zingit Services. Before utilizing our text Zingit Services, you represent and warrant that you have complied with the local laws in the relevant jurisdiction, including without limitation, the TCPA. Additionally, if you choose to use our text appointment reminder services, you expressly agree and acknowledge that: (1) you are authorized to make outbound text messages to the intended recipients; (2) you have notified your text recipient in advance that an appointment reminder text will be sent by you; (3) you have notified your text recipient in advance that carrier text message fees may apply to their receipt of the appointment reminder texts from you; (4) you have provided a mechanism to your intended recipient(s) on how to opt-out of the text appointment reminder services; and (5) Zingit shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorized representative or third party, of the text message and its contents, and/or of any personal information.
4.2 Local SEO & Citation Services. Zingit may offer a Local SEO & Citation Services (the “Local SEO & Citation Services”) under which your business information and customer reviews (collectively, the “Business Information”) are submitted to search engines, indexes and websites. You agree to participate in the Local SEO & Citation Services and allow Zingit to make this data available and provide registration services to third party sites. It is up to third party sites to accept the submissions, and Zingit makes no warranty as to such sites’ willingness to do so. For so long as you continue to subscribe to the Zingit Service, Zingit will make a good faith attempt to ensure accuracy and confidentiality of the information we provide to third party sites under the Local SEO & Citation Services. We have no control of third party websites or resources that are provided by companies or persons other than that of Zingit. Additional tools may be available from the third parties to provide additional updates to your information, but if you use such services, Zingit is not liable for any claim arising out of the combination of such services with the information provided by the Local SEO & Citation Services. If you no longer have an active subscription, Zingit may remove Your Data and any consumer reviews from websites controlled by Zingit, at our sole discretion. You may request in writing explicit removal of the Your Data from such websites controlled by Zingit. Zingit is not obligated to request third parties to remove Your Data and any consumer reviews from third party websites. Zingit may terminate your participation in the Local SEO & Citation Services, or these Terms of Service, at any time in that you are not in compliance with any other applicable agreement. Upon termination of this Terms of Service by either party, Your Data and any consumer reviews may remain in any data feeds provided to third parties under the Local SEO & Citation Services. Zingit reserves the right to terminate the Local SEO & Citation Services as to you or any other user at any time for any reason or no reason.
You represent and warrant that you have obtained all necessary consents and/or approvals to use Your Data, specifically including any personal information of third parties, to contact such third parties located in Your Data to perform the Zingit Services, specifically including those referenced herein. You acknowledge and agree that Zingit may use any and all personal information of the third parties in conjunction herewith. You acknowledge and agree that Zingit shall not be liable for and that you will defend, indemnify, and hold harmless Zingit from any third-party claims arising from the use of the third party personal information, specifically including any contact made with third parties in association with the Zingit Services you have elected to use.
4.3 Bulk text Services. Zingit may provide an optional bulk text Zingit Service (the “Group Messaging service”), which may include additional related fees. A fee of $0.03 per text over and above a billing period cap of 5,000 messages will be added to your next month’s bill. As a matter of practice, Zingit requires that you obtain the necessary consent from the parties to be contacted via text prior to utilizing our bulk text Zingit Services. Before utilizing our text Zingit Services, you represent that you have complied with the local laws in the relevant jurisdiction, including without limitation, the TCPA. Additionally, if you choose to use our text Zingit Services, you expressly agree and acknowledge that: (1) you are authorized to make outbound text messages to the intended recipients and have received their consent; (2) you have notified your text recipient in advance that text will be sent from you; (3) you have notified your text recipient in advance that carrier text message fees may apply to their receipt of the text from you; (4) you have provided a mechanism to your intended recipient(s) on how to opt-out of text from you; and (5) Zingit shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorized representative or third party, of the text message and its contents, and/or of any personal information.
4.4. Restrictions. Except as otherwise explicitly provided in these Terms of Service or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) rent, lease, or, except as explicitly set forth in these Terms of Service, otherwise permit third parties to use the Service; (b) use the Service to provide services to third parties as a service bureau or in any way that violates applicable law; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is false, misleading, illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; (f) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system; (g) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, access, retrieve, index, “data mine”, or in any way reproduce or circumvent, avoid, bypass, remove, or deactivate the navigational structure or technical measures or presentation of the Services or its contents; (h) attempt to probe, scan or test the vulnerability of the Services or any of our systems or network or breach any security or authentication measures; or (i) use, display, “frame” or “mirror” any part of the Services, our names, any of our trademarks, logos or other proprietary information, or the layout and design of any page or form contained on a page, without prior written authorization from us. You will not copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Service or its underlying software. You will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Service and will include all such notices on any copies.
5. TECHNICAL SUPPORT
In connection with the provision of technical support, training, and other Zingit Services, Zingit may remotely log-in to your computers, devices, and systems for purposes of providing the support, training, or other Zingit Services, including, without limitation, technical troubleshooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. Zingit may also remotely log-in at any time as necessary or appropriate to maintain our Zingit Services. Zingit reserves the right to log off accounts that are inactive for an extended period of time. In addition, Zingit may quarantine suspected messages. You agree that Zingit may automatically check the version of a Zingit Service that you are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to your computers and systems. You agree to keep your computers powered on during the Zingit Services runtimes that you specify. You must add Zingit or its third-party affiliate to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us. Additionally, your practice management software must always be accessible by Zingit. It is your responsibility to contact Zingit if you are upgrading or changing your computer systems.
5.1 Third-Party Integrations. The Zingit Service contains features that enable us to integrate our software into third party software and/or applications (“Third Party Service”) in order for us to provide key aspects of our Services. To use such features, you may be required to obtain access to such Third Party Service from its provider, and may be required to grant us access to your account(s) on such Third Party Service. You shall provide, and shall cause the provider of the Third Party Service to provide (the “Software Provider”), us with any reasonably requested information and materials needed to integrate the Third Party Service with the Services. By enabling Zingit to integrate its Service with your Software Provider you are representing to us that you have complied with the terms and conditions of your Software Provider in authorizing our access.
To enable our service features, you give us express permission and consent to access your server(s) in order to integrate the Zingit Service. These integration requirements may change from time-to-time and Zingit will post notifications of these changes. Your continued use of the Zingit Service serves as your express consent to update our integration procedures with the required Software Provider. You further grant us permission to allow the Third Party Service and its Software Provider to access any data (including, without limitation, data that may be sensitive or confidential) provided to us in connection with the Services as required for the interoperation of that Third Party Service with the Services. We are not responsible for any disclosure, modification or deletion of such data resulting from access by any Third Party Service or its Software Provider. Any acquisition by you of a Third Party Service, and any exchange of data between you and any Third Party Service or its Software Provider, is solely between you and the applicable third-party Software Provider. We do not warrant or support Third Party Services or other any other third-party products or services. We cannot guarantee the continued availability of any Service features that interoperate with a Third Party Service, and may cease providing them without being in breach of this Agreement or entitling you to any refund, credit, or other compensation, if for example and without limitation, the Software Provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service features in a manner acceptable to us.
The fees for the Zingit Service and any additional Services (“Fees”) are set forth in the Subscription Agreement and are payable in advance, irrevocable, and non-refundable except as set forth in the Subscription Agreement and these Terms of Service. You agree to provide Zingit with complete and accurate billing and contact information. Where payment by credit card is indicated in the Subscription Agreement, or you otherwise provide Zingit with credit card information, you authorize Zingit to bill such credit card: (a) at the time that you order the Zingit Service or other Services set forth in the Subscription Agreement; (b) for any billing frequency otherwise established in the Subscription Agreement; and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. You agree to immediately notify Zingit in writing of any change in your billing address or the credit card or billing information, used for payment hereunder.
7. PAYMENT TRANSACTIONS
If you wish to purchase any product or service made available through the Services (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any transaction. By submitting such information, you grant to Zingit the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Services are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Services does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from Zingit. By placing an order, you represent that the products ordered will be used only in a lawful manner. Zingit reserves the right, with or without prior notice, to do any one or more of the following: (a) limit the available quantity of or discontinue any product or service; (b) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (c) bar any user from making or completing any or all Transaction(s); and (d) refuse to provide any user with any product or service.
8. INTELLECTUAL PROPERTY OWNERSHIP
As between you and us, all content on the Services, including any names, logos, trademarks, service marks, brand identifiers, copyrights, trade dress, or other intellectual property appearing on the Services, including the organization, compilation, look and feel, illustrations, graphics, artworks, videos, music, software, and other works of the Services (collectively, the “Works”) are owned by Zingit, and are protected under copyright, trademark, and other intellectual property and proprietary rights laws. All right, title, and interest to the Works remain with Zingit. Nothing herein shall be interpreted to grant you a license to use any of the Works without Zingit’s express written permission.
9. CONTENT FROM THIRD PARTIES
Any and all content from third parties is for informational purposes only and Zingit does not verify the accuracy or truthfulness of any material. Specifically, Zingit does not independently verify information. Zingit does not independently verify the accuracy or truthfulness with respect to the operation of any of the locations identified in the Services, including the hours of operation, availability of certain products/services, or otherwise.
10. YOUR DATA; CONTENT POSTED BY USERS
Data Transmission. You acknowledge that use of the Service involves transmission of Your Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must protect your login name and password from access or use by unauthorized parties, and are solely responsible for any failure to do so. You must promptly notify us of any suspected security breach.
Your Data. Your Data is your property. We may use data in accordance with our privacy policies found at Zingit.com, which is hereby incorporated by reference.
Any and all content (including replies to reviews or testimonials) posted by you to the Services, to Zingit’s social media pages, or any other area to which you may have access to or the ability to post content, must comply with these Terms of Service, any other agreement controlling your relationship with Zingit, and any applicable federal, local, or state laws and regulations.
By using the Services, you are agreeing to these Terms of Service, and warrant that: (a) you have obtained the necessary permissions of any and all third parties for any of Your Data or content posted and/or otherwise made available by you; (b) any and all of Your Data and content posted and/or otherwise made available by you is truthful, complete, and accurate, and not misleading in any manner; and (c) you are not violating any law, regulation, code, or otherwise in your posting and/or sharing of Your Data and the content, including intellectual property, right of privacy, and defamation, or any other applicable law, regulation, or order. For purposes of clarity, you specifically agree to comply with all local, state and federal laws including but not limited to HIPPA as it relates to PHI. If you are unsure whether Your Data or the content you are considering posting relates to any HIPPA and/or PHI measure, you agree to seek independent counsel before posting said content.
You further agree to indemnify, defend, and hold harmless Zingit from any and all liability, claim, cause of action, loss, or damages resulting from Your Data or any content you post and/or otherwise make available to the Services, to Zingit’s social media pages, or any other area to which you may have access to or the ability to post content.
You hereby grant an irrevocable, fully prepaid, perpetual license to Zingit to use anything posted and/or otherwise made available by you to the Services.
11. TECHNICAL SUPPORT
During the Subscription Term, you will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Technical Support”) for the Zingit Service offered by Zingit from time to time, and the terms of conditions of which may be described and updated from time to time on the support or customer care sections of the relevant Zingit website (www.Zingit.com). Zingit reserves the right to modify the posted terms and conditions for Technical Support, at any time in its sole discretion.
The Health Insurance Portability and Accessibility Act (“HIPAA”) relates to the handling of health information, namely to regulate the transmission of PHI. Zingit is not a health provider and does not provide any type of medical care, services, or otherwise to patients, or any other person or entities. While the Services may be used to store a patient’s PHI, Zingit does not utilize any PHI or other information for any type of medical care, or other related use. You agree to alert Zingit in writing if you will be using the Services to store or process PHI. To the extent that you do use the Services to store or process PHI, then the terms of the Zingit Business Associate Agreement will apply to any PHI stored or processed by you using the Services and the terms of the Zingit Business Associate Agreement are incorporated herein by reference. To the extent necessary, you are solely responsible for obtaining patient consents or authorizations prior to using the Services to store or process PHI and prior to allowing access to PHI by Zingit. You agree to indemnify and hold Zingit harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees) that arise due to your failure to obtain any such consents or authorizations. We may anonymized or de-identify PHI you provide us, and use such resulting data for any purpose, as long as we follow applicable HIPAA requirements with respect to the anonymization or de-identification of PHI.
13. SOCIAL MEDIA AND LINKED SITES
13.1 Third Party Review Sites (e.g. Yelp). In the event you use the services, whether in part or in the entirety, of third party review sites, e.g. Yelp, you agree and consent to be bound by their terms of service and privacy policies located at https://www.yelp.com/static?p=tos and https://www.yelp.com/tos/privacy_en_us_20160131 respectively. In some cases, these third-party review sites may post community guidelines that impose specific restrictions and/or penalties which may affect your relationship with Zingit. For example, Yelp imposes specific penalties on users that “solicit reviews”, see https://www.yelp-support.com/article/What-is-Yelp-s-review-solicitation-penalty. Zingit considers the use of our services to “solicit reviews” on third-party review sites like Yelp to be violative of our Terms of Service and specifically our Community Guidelines, see Section 15 below. Moreover, use of the Zingit services to “solicit reviews” on Yelp may violate their terms of service and may subject you to penalties. These penalties may cause you to incur fees, fines, and/or result in lost income or business opportunities. In using the Zingit services, you agree to abide by these third-party terms and acknowledge that Zingit does not interpret, analyze, and/or enforce these third-party terms nor do we arbitrate any disputes that you may have with how these terms are interpreted and/or applied. Consequently, Zingit is not liable for any losses, fines, and/or penalties incurred by you and/or anyone acting on your behalf who violates these third-party terms.
14. CONFIDENTIAL INFORMATION
For purposes of this Agreement, confidential information shall include the business terms in the Subscription Agreement, Your Data, the Zingit Service and the Zingit Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Zingit may disclose Confidential Information to its contractors who have executed written agreements requiring them to maintain such information in confidence. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
The Services may permit you to or you may otherwise submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of a Service (collectively, “Feedback”). We or our affiliates may freely use any Feedback with any obligation of confidentiality or other restriction of any kind, and as against us and our affiliates, you waive any rights you may have in the Feedback.
15. COMMUNITY GUIDELINES
The Services, Linked Sites, and Social Media Sites may include the ability to post comments or otherwise engage in communications with third parties through bulletin boards, chat rooms, blogs, comment sections, or other community forums (the “Community Forums”). The following governs the use of the Community Forums:
Zingit will monitor the Community Forums on a regular basis for any violations of these Terms of Service, or any illegal content.
Zingit will not act as an arbiter for any dispute or disagreement between users and shall have no liability to you for any content posted in the Community Forums and is under no obligation to edit or modify information available in the Community Forums.
Zingit reserves the right, in its sole and complete discretion, to refuse to post, or remove, any material submitted to the Community Forums.
You acknowledge and agree that Zingit may store any material posted to the Community Forums. You further acknowledge and agree that Zingit may use material posted by you in the Community Forums for any purpose whatsoever, including but not limited to incorporating the submission into content that may be commercial in nature.
Prohibited Statements – you are expressly prohibited from submitting any of the following:
Any submissions that disparages competitive products, is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, racially offensive, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or otherwise objectionable.
Any submission that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law, including without limitation, material that depicts child pornography, acts of violence, drug use, or would violate the regulations of the U.S. Securities and Exchange Commission, or any rules of a securities exchange.
Any submission that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary rights of any party.
Any submission that impersonates any person or entity, or otherwise misrepresents your affiliation with a person or entity.
Unsolicited promotions, political campaigns, advertising, or solicitations including the use of our services to “solicit reviews” on third party sites.
Private information of any third party, including without limitation, addresses, phone numbers, email addresses, social security numbers, credit card numbers, or any other similar piece of information including but not limited to PHI.
Viruses, spyware, Trojans, corrupted data, or any other harmful, disruptive, or destructive files.
Any other submission that, in Zingit’s sole and complete discretion, is inappropriate or objectionable, or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Zingit or its users to any harm or liability of any type.
WITHOUT LIMITING ANYTHING HEREIN, THE SERVICES, ITS CONTENT, AND ALL OF ITS FEATURES, ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, ITS CONTENT, AND OF ITS FEATURES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZINGIT SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED HEREIN. ADDITIONALLY, ZINGIT DOES NOT MAKE ANY WARRANTIES THAT THE SERVICES WILL BE SECURE, ERROR FREE, OR OTHERWISE MEET YOUR EXPECTATIONS. ZINGIT DOES NOT WARRANT THAT THE SERVICES, ITS CONTENT, OR FEATURES ARE CORRECT, ACCURATE, OR RELIABLE. ZINGIT RESERVES THE RIGHT TO CHANGE ANY PART OF THE SERVICES AT ANY TIME WITHOUT NOTICE.
17. LIMITED WARRANTIES
You warrant that your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as the Zingit Acceptable Use Policy, in connection with your use of the Zingit Service.
18. LIMITATION OF LIABILITY
Your use of the Services is at your own risk. ZINGIT, ITS AFFILIATES, AND THE RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND REPRESENTATIVES WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY DAMAGES, DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME, PROFIT, OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICES, OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF THE WORKS, OR OTHER INFORMATION AVAILABLE ON THE SERVICES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT, PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY, OR OTHERWISE. THE FOREGOING SHALL APPLY EVEN IF ZINGIT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. If you become dissatisfied in any way with the Services, the Terms of Service, or any other applicable agreement, your sole and exclusive remedy is to stop your use of the Services and its services. You hereby waive any and all claims against Zingit, its affiliates, officers, directors, agents, representatives, and licensors arising out of your use of the Services.
THE AGGREGATE LIABILITY OF ZINGIT, ITS AFFILIATES, AND THE RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND REPRESENTATIVES SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100), OR IF SUCH AMOUNT IS FOUND TO BE UNENFORCEABLE, THE AMOUNT YOU PAID US TO USE THE ZINGIT SERVICE IN THE PAST SIX (6) MONTHS.
THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS, AND EXCLUSIVE REMEDIES HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
19. CHOICE OF LAW & VENUE AND DISPUTES
You agree that any and all matters relating to your access to and/or use of the Platform, including all disputes, will be governed by the laws of the United States and by the laws of the State of Nevada without regard to its conflicts of laws and provisions. Any action arising under this Agreement or otherwise related to the Zingit Solutions Platform must be brought in the State and Federal courts in Clark County, Nevada. You agree to the personal jurisdiction by and venue in the State and Federal courts in Clark County, Nevada, and waive any objection to such jurisdiction or venue.
Dispute Resolution. In the event of any dispute or controversy between Zingit Solutions and you arising out of or in connection with your use of the Platform, both parties shall attempt, promptly and in good faith, to resolve any such dispute or controversy outside of the courts. If we are unable to resolve any such dispute or controversy within a reasonable time, then either party may submit such dispute or controversy to mediation. If the dispute or controversy cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.
You agree to defend, indemnify and hold harmless Zingit, members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees (cumulatively “Zingit Indemnitees”) from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees that may, at any time, arise out of or relate to your authorized, unauthorized, lawful or unlawful use of the Services, your breach of the Terms of Service as stated herein or as modified from time to time in Zingit’s sole discretion, your inability to access the Zingit Materials and/or Zingit Services, the use of any linked sites, your reliance on any errors or omissions, or the propagation and/or contraction of any computer virus in connection with your use of the Zingit Materials and/or Zingit Services.
21. FORCE MAJEURE
Except for Your obligation to pay Fees for the Zingit Service or other Services rendered, neither you nor us will be responsible for failure of or delay in performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, pandemics, epidemics or other widespread disease, civil disturbance or Act of Parliament or other Government action, strike, postal delay, shortage of materials, extreme weather conditions, disaster conditions, acts of terrorism, ransomware, denial of service or other third party attacks, or the stability or availability of the Internet or a portion thereof, or any other reason beyond the control of Zingit.
22. ABILITY TO ACCEPT TERMS OF SERVICE
You affirm that you are more than the legal age in the territory in which you reside, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Service, and to abide by and comply with the Terms of Service.
23. CHANGES AND UPDATES
We may revise these Terms of Service from time to time. Your use of the Services following any revised Terms of Service shall be deemed an acceptance of the revised policy. Your use of the Services following any revised Terms of Service shall be deemed an acceptance of the revised policy governing any and all use, including prior use, of the Services by you. We recommend you review these Terms of Service from time to time to stay updated. We will make a commercially reasonable effort to obtain your consent before implementing revisions which materially affect the disclosure or use of your Personal Information. If you disagree with the terms of these Terms of Service at any time, your sole remedy is to terminate your use of the Services and inform us of such termination.
24. MISCELLANEOUS TERMS OF SERVICE
24.1 Notice. Notices regarding this Terms of Service to Zingit shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to Zingit Solutions, LLC, Attn. Administrator, 200 N. Fairway Dr, Suite 174, Vernon Hills, IL 60061. Zingit may give notice applicable to Zingit’s general customer base by means of a general notice on the Zingit Service portal, and notices specific to you by electronic mail to your designated contact’s email address on record with Zingit, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to your address on record in Zingit’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the Zingit Service portal.
24.2 Waiver. The failure of either party to enforce any right or provision in this Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
24.3 No Joint Venture. None of the Terms of Service or use of the Zingit Service shall be construed as constituting an employer-employee, joint venture, pooling arrangement, partnership, teaming effort, or agency arrangement between the parties. Neither party shall have any right to obligate or bind the other in any manner whatsoever, and nothing contained herein shall give, or is intended to give, any rights of any kind to any third party.
24.4 No Assignment. You may not assign or transfer this Terms of Service or any interest herein, in whole or in part, without Zingit’s prior written approval, which approval shall not be unreasonably withheld. Any attempted assignment or grant in derogation of the foregoing shall be void.
24.5 Headings and Terms Contractual. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of this Terms of Service. These Terms of Service are contractual in nature and not mere recitals.
24.6 Severability and Construction. If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable law, then it shall be construed in a manner which is valid and enforceable that is closest to the intentions set forth herein. The remainder of the Terms of Service shall remain in full force and effect.
24.7 Entire Terms of Service. These Terms of Service supersede all previous arrangements or understandings, whether written or oral, and contain the entire agreement of the parties with respect to the subject matter thereof and hereof.
24.8 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Zingit Service, including Zingit technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Zingit Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
24.9 Access by Competitors. You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
CONSENT TO ELECTRONIC COMMUNICATIONS
Updating your Consent. If you later decide that you do not want to receive certain future communications electronically, please send an email or a letter. You may also opt out of certain electronic communications through your account or by following the unsubscribe instructions in any communication you receive from us. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above. We will need to send you certain communications electronically regarding the Services. You will not be able to opt out of those communications – e.g., communications regarding updates to the Terms of Service or information about billing. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms of Service provided to and accepted by you. If you withdraw your consent to receive communications electronically, certain Services may become unavailable to you.