PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS APPLICATION. This is a legally binding agreement between you and Zimply Network, Inc.. These Terms of Use govern use of the applications operated by or on behalf of Ziply Network, Inc. ("Ziply" or "we" or "us") and on which these Terms of Use appear, including those at all Ziply URLs and Ziply services provided on or through mobile applications, websites, third party platforms including social networking sites or similar communication platforms that you have linked with our applications and websites ("Third Party Platforms"), and various API services and other services that we may offer from time to time (collectively, the "Services"). Your right to use the Services is subject to your compliance with all of the terms and conditions set forth herein. The Services constitute a technology platform that enables users of Ziply's mobile applications or websites provided as part of the Services (each, an "Application") to arrange and schedule delivery and/or logistics services with third party providers of such services, including independent third party delivery providers and third party logistics providers under agreement with Ziply or certain of Ziply's affiliates ("Third Party Providers"). Unless otherwise agreed by Ziply in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT ZIPLY DOES NOT PROVIDE DELIVETRY OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER. Your access to and use of the Services are governed by these Terms of Use ("Terms of Use") and Ziply's Privacy Policy ("Privacy Policy"), which is incorporated by reference in its entirety herein (both the Terms of Use and Privacy Policy shall collectively be referred to herein as the "Terms" unless specifically stated otherwise). By accessing and/or using the Services you agree to abide by the Terms, including all rules, terms, conditions, restrictions and notices therein. If you do not wish to be bound by the Terms, you may not access or use the Services.
Ziply reserves the right to, and will not be liable to any user or third party, for doing the following: changing the Terms at any time; changing the Services, including terminating, eliminating, supplementing, modifying, adding to or discontinuing any content, functionality, promotion, data on or feature of the Services or the availability of the Services; or changing any fees or charges in connection with the use of the Services.
These Terms of Use were posted on August 27th, 2015
YOU MUST BE AT LEAST 18 YEARS OF AGE TO (a) USE THE SERVICES, (b) USE ANYTHING ACCESSIBLE OR AVAILABLE ON OR THROUGH THE SERVICES OR THROUGH THIRD PARTY PLATFORMS, (c) CREATE AN ACCOUNT, OR (d) TRANSMIT/SUBMIT/POST ANY SUBMISSION (as defined below), ANY PERSONAL INFORMATION OR ANYTHING TO ANY FORUM OR ANYWHERE ELSE ON THE SERVICES. By accessing, using and/or submitting information to or through any of the Services, including Services available on or through Third Party Platforms, you represent that you are at least 18 years of age or older and otherwise have the legal capacity to enter into these Terms.
Ziply reserves the right to make changes to any Terms at any time, however, Ziply shall provide notification to you in advance of any changes becoming effective, such as by posting a notification on a Ziply website or via email. If you continue to access and/or use the Services or Content (defined below) after the effective date of such changes, then such access and/or use will be deemed an acceptance of and an agreement to follow and be bound by the Terms as changed. The revised Terms supersede all previous notices or statements regarding the Services and Content. For this reason, we encourage you to review these Terms any time you access or use the Services or Content.
The information and materials provided on or through the Services, including without limitation, any other data, text, pictures, graphics, audio, video, icons, games, software, and upgrades for use on or through the Services, links, and other content, features and services available on or through the Services (collectively, the "Content"), excluding Submissions (defined below), are intended for use with the Services. THE CONTENT ARE PROVIDED "AS IS" AND YOUR USE THEREOF IS ENTIRELY AT YOUR OWN RISK.
The Services are provided for your personal use, unless otherwise specified on or in the Services. Ziply hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Services for your own non-commercial personal use, subject to your compliance with the Terms and any and all other terms and policies set forth on or in the Services. Ziply reserves the right to revoke your right to use the Services at any time as further set forth in Section 13 herein.
Except as expressly provided in the Terms, Ziply does not grant you any other express or implied rights or license in or to the Content or Services, and all right, title and interest that Ziply has in the Content and Services rights not explicitly granted to you by Ziply or its licensors are retained by Ziply or its licensors, respectively.
You acknowledge that the Content and Services are protected by and/or embody copyrights, trademarks, patents, trade secrets and/or other proprietary rights ("Intellectual Property") owned by Ziply, and/or its licensors, including without limitation the selection, coordination, arrangement, compilation, assembly and any enhancements thereto. The Services and Content (and any Intellectual Property and other rights relating thereto) are and will remain the property of Ziply. The trademarks, trade names, trade dress, logos, and service marks displayed on the Services or any Third Party Platform, including the Ziply marks, logos and trade dress are the registered and/or unregistered trademarks of Ziply, Ziply's licensors and vendors and/or other third parties. The Intellectually Property may not be used by you for any purpose without Ziply's prior express written permission, unless permissible by law. Notwithstanding the foregoing, the Intellectual Property may not be used in connection with any product or service that is not Ziply's, in any manner that is likely to cause confusion among consumers, or in any manner that discloses confidential information or disparages Ziply. Nothing contained on the Services or available on any Third Party Platform should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Intellectual Property.
In order to access certain areas of or participate in certain activities contained on the Services, we may require you to create an account ("Account"). To create an Account, we may ask or require you to provide us with certain personal information (for example, your name and e-mail address), or by providing your credentials through a Third Party Platform and their associated API. YOU AGREE THAT:
YOU ARE RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND ALL ACCESS TO AND USE OF YOUR ACCOUNT INCLUDING CREDENTIALS PROVIDED BY YOU THROUGH THIRD PARTY PLATFORMS, INCLUDING ANY AND ALL ACTIVITIES (INCLUDING USE OF THE SERVICES ON OR AVAILABLE THROUGH THE SERVICES OR THIRD PARTY PLATFORMS, AS APPLICABLE) THAT ARE CONDUCTED THROUGH THE USE OF YOUR USERNAME AND PASSWORD, AUTHORIZED BY YOU.
Payments: Any and all payments made to Ziply for use and access to any Services are final and all charges are nonrefundable. Cancellations are effective the following billing period in which payment is due. You will not receive a refund for any payment amount, even if payment was made for multiple billing periods. If you have an account, set up for reoccurring billing, you may cancel your Account at any time. You will continue to have the same access for any billing period or periods for which you have paid. If your profile content or your conduct within the Services violates our Terms of Service, your access and Account may be immediately terminated and all payments forfeited.
You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider ("Charges"). After you have received services or goods obtained through your use of the Service, Ziply will facilitate your payment of the applicable Charges on behalf of the Third Party Provider, as such Third Party Provider's limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Ziply.
As between you and Ziply, Ziply reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Ziply's sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Ziply will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Ziply may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third Party Provider at any time prior to such Third Party Provider's arrival, in which case you may be charged a cancellation fee.
This payment structure is intended to fully compensate the Third Party Provider for the services or goods provided.
While using any of the Services, including on or in any “Submissions” (as defined below), postings or ratings, you agree to use commercially reasonable efforts (the "Standards"), and you agree to not:
Create a false identity or impersonate any person, including without limitation, identities falsely indicating that you are an Ziply representative;
Create any posts or username containing profanity, sexually graphic or offensive language, including any uses of characters such as \@#$% to replace letters;
Send, post, transmit or make available any content or message that is false, inaccurate, misleading, disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, pornographic, vulgar, inciteful, racist or otherwise objectionable;
Suggest, illicit or encourage any illegal activity;
Submit content or Submissions that are subject to intellectual property protection, including without limitation, copyright, trademark, trade secret or patent rights, or otherwise subject to third party proprietary rights, including, without limitation, privacy and publicity rights, unless you are the owner of such rights or have permission from the owner to do so and to grant Ziply all of the license rights necessary to transmit or maintain such content, material, or Submissions;
Send, post, transmit or make available any: any confidential, non-public information about any person or company without the express authorization to do so;
Send, post, transmit or otherwise make available any advertisements, solicitations, chain letters, pyramid schemes, junk mail, SPAM, investment opportunities or other unsolicited or unauthorized commercial or promotional content, materials, SPAM or communication (except as otherwise expressly permitted herein or in writing by Ziply);
Institute an attack upon any server used in connection with the Services or any portion thereof or otherwise attempt to disrupt such servers, including any Services available on or through the Ziply websites, applications and/or any Third Party Platform;
Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble all or any portion of the Services or Content, including the Services;
Attempt to obtain passwords, other Account information, or any other private information from any other user of the Services, including any Services made available on or through any Third Party Platform, and including without limitation, the collection personal information about others, such as email addresses or geo-locations;
Use the Services in any manner that violates any applicable laws or regulations or is prohibited by these Terms.
If you are using the Services through an account access purchased by an organization through a Corporate Plan are governed by these terms.
The Services may include links to other websites or services (including advertisements and payment providers), including Third Party Platforms that you have authorized and associated with your Account ("Linked Content"). The inclusion of any Linked Content does not imply endorsement by Ziply or any customer of Ziply of any third party, third party websites or any association with the operators of such Linked Content. You are responsible for viewing and abiding by the privacy statements and terms of service/use posted at any third party or Linked Content. The information, products, materials and services on Linked Content is not under the control of Ziply and Ziply does not provide or endorse any such Linked Content or the information, products, materials or services contained on or available or accessible on or through any Linked Content. Ziply responsible if any Linked Site is not functioning properly. Ziply makes no express or implied warranties with regard to the information, products, materials or services that are contained on or accessible through any Linked Content. Access and use of any Linked Content, including the information, products, materials and services on any Linked Content or available through any Linked Content, is solely at your own risk, and you acknowledge and agree that Ziply is not responsible or liable, directly or indirectly, for any loss or damage caused or alleged to be caused by your use of any or dealings with any Linked Site or as the result of the presence of any advertisers on the Services or available through any Third Party Platforms.
The Services may include features such as ratings, message boards, social media posts through Third Party Platforms and/or other forums or areas where you and others can post or transmit information onto or through the Services, including through Third Party Platforms (collectively, the "Forums"), and Ziply may redistribute content you send/upload/post to the Services or through Third Party Platforms. By sending, posting or transmitting to Ziply, including photos, graphics, concepts, information, ratings or other materials (collectively, "Submissions") or by posting such Submissions to any area of the Services (including without limitation, the Forums) or on Third Party Platforms, you grant Ziply and our designees and users a worldwide, non- exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to you or the provider of the Submissions. Ziply may use any Submission in the promotion of the Ziply Services including the reproduction of Submissions on other websites, marketing materials, or other distribution channels as determined by Ziply. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Submissions. Information and Submissions contained on our Forums may be provided by persons not affiliated with us. You agree not to transmit any Submission to or through the Services or Third Party Platforms, or to Ziply that you consider to be confidential or proprietary, and any and all Submissions shall be deemed non-confidential. You are responsible and liable for any Submissions.
You acknowledge and agree that your communications with other users via the Forums are public and not private communications, and that you have no expectation of privacy concerning your use of the Forums.
We neither endorse nor are responsible for such Submissions or statements, or for any opinion, advice, information or other utterance made or displayed on the Services, through Third Party Platforms, or in any Forums by third persons. The opinions expressed in the Forums reflect solely the opinion(s) of the participants of the Forums and do not necessarily reflect the opinion(s) of Ziply. Ziply is not responsible for any errors or omissions in any material or postings, for hyperlinks embedded in any Submissions or for any results obtained from the use of any such statements or information. Under no circumstances will Ziply or our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on the Submissions or on any information or materials obtained through the Services or any Third Party Platform. Ziply has no obligation to monitor the Services, any Third Party Platform, or the Forums, or any Submissions or other materials that you or other third persons or parties transmit or post on the Services, on any Third Party Platform, or in the Forums. You acknowledge and agree that Ziply has the right (but not the obligation) to do any or all of the following, at its sole discretion: (i) alter, remove, or refuse to post or allow to be posted or stored any Submission or message; (ii) monitor and/or filter any of your communications through the Forums (including without limitation, by means of blocking or replacing expletives or other language that may be deemed harmful or offensive); and/or (iii) disclose any Submission or message or any communication through the Forums, and the circumstances surrounding the transmission thereof, to any third party in order to operate the Services available thereon or through any Third Party Platform to comply with legal obligations or governmental requests; and to enforce these Terms.
Notwithstanding anything contrary stated in these Terms, by posting a Submission you represent and warrant that (a) you own or otherwise control all of the rights including without limitation, all copyrights, to your Submission or are otherwise legally entitled to post the submission; (b) the content is accurate; (b) use of the content you supply does not violate the Terms and will not cause injury to any person or entity; and (d) you will indemnify Ziply and/or its subsidiaries and affiliates for all claims resulting from any content, information, and ratings, including without limitation, all Submissions, you supply, provide or transmit to Ziply or the Services or any Third Party Platform. Ziply has the right, but not the obligation, to monitor and edit or remove any activity or content. Ziply takes no responsibility and assumes no liability for any content, materials or Submissions posted by you or any third party. ZIPLY RESERVES THE RIGHT TO REMOVE ANY SUBMISSIONS THAT IT DETERMINES IN ITS SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE SERVICES, OR ON OR THROUGH ANY THIRD PARTY PLATFORM.
Ziply reserves the right, at any time, to modify, suspend, or discontinue the Services, the Content and/or any part or parts thereof with or without notice. You agree that Ziply will not be liable to you or to any third party for any such modification, suspension, or discontinuation.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Ziply infringe your copyright (for example, materials posted by a user on one of our Forums), you (or your agent) may send us a notice requesting that the material be removed or access to it blocked. Please see the requirements and specific instructions for submitting a notice to Ziply at notices@_______________.
Your right to access and use the Services, will remain effective until terminated in accordance with the Terms. Ziply reserves the right to revoke the limited license granted to you herein for any reason or no reason, and, if we do, Ziply may terminate your access to and use of the Services, and may, in its sole discretion maintain or delete your Account.
Ziply may suspend, terminate, modify, or delete your Account with or without notice to you, at any time for any reason or for no reason, including without limitation, for violation or suspected violation of the Terms. For example, your Account may be deleted and terminated without warning if Ziply believes, in its sole discretion, that you are under 18 years of age; if you provide any information that is untrue, inaccurate (or becomes untrue, inaccurate, not current or incomplete); or Ziply has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete. Upon termination, your right to access and use the Services or Content, will immediately cease. In addition to its termination rights, Ziply also reserves the right to refuse service to anyone and to remove content, Submissions or Content for any reason whatsoever in its sole discretion.
The provisions of Sections 3, 4 through 7, 9, 12 through 19 will survive any termination of the Terms.
THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ZIPLY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. ZIPLY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SERVICES, WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES, THE SUBMISSIONS, THE SERVER(S) ON WHICH THE SERVICES ARE HOSTED, OR ANY PRODUCTS AVAILABLE ON THE SERVICES OR THROUGH ANY THIRD PARTY PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO OPINION, ADVICE OR STATEMENT OF ZIPLY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE ON THE SERVICES, IN THE CONTENT, ON THIRD PARTY PLATFORMS OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SERVICES AND CONTENT ARE ENTIRELY AT YOUR OWN RISK.
NEITHER ZIPLY NOR ANY OF OUR SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES AND ANY LOSS, DAMAGE OR DELAY OF DELIVERY OF ANY PROPERTY OF YOU PURSUANT TO THE SERVICES, AND/OR CONTENT, INCLUDING ANY CONTENT AVAILABLE THROUGH ANY THIRD PARTY PLATFORM, SUBMISSIONS, ANY LINKED WEBSITES OR ANY CODE, PRODUCT OR SERVICE PURCHASED, ACCESSIBLE OR USABLE THROUGH THE SERVICES OR ANY THIRD PARTY PLATFORM. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES, CONTENT, INCLUDING ANY PRODUCTS AVAILABLE ON THE SERVICES OR THROUGH ANY THIRD PARTY PLATFORM, SUBMISSIONS OR ANY LINKED WEBSITES IS TO STOP USING THE SERVICES, CONTENT, SUBMISSIONS, PRODUCTS, OR LINKED WEBSITES, AS APPLICABLE. THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO ZIPLY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT PAID BY YOU TO ZIPLY IN THE PRECEDING TWELVE (12) MONTHS, IF ANY, TO ACCESS OR USE THE SERVICES. YOU AGREE THAT THE DAMAGE EXCLUSIONS IN THESE TERMS OF USE SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NO COMMUNICATION OF ANY KIND BETWEEN YOU AND ZIPLY OR A REPRESENTATIVE OF ZIPLY CONSTITUTES A WAIVER OF ANY LIMITATIONS OF LIABILITY HEREUNDER OR CREATE ANY ADDITIONAL WARRANTY NOT EXPRESSLY STATED IN THE TERMS. MULTIPLE CLAIMS WILL NOT INCREASE THE MONETARY DAMAGES LIMIT STATED HEREIN.
You agree to indemnify, defend and hold harmless Ziply, our affiliates, licensors, suppliers, advertisers and sponsors, and our and their directors, officers, employees, consultants, agents and other representatives, from and against any and all claims, damages, losses, costs (including without limitation, reasonable attorneys' fees and expenses) and other expenses that arise directly or indirectly out of or from: (a) any allegation that any Submission or other information you post, submit to us or transmit to the Services or through a Third Party Platform infringes or otherwise violates the copyright, trademark, trade secret or other intellectual property or other right of any third party; (b) your breach or violation (including through use of your username, topic name, or Account, whether or not by you) of the Terms, including the Standards, or any applicable laws or regulations; (c) your access to and use of the Content or Services, and including any Services available on or through any Third Party Platform, or Submissions; (d) any viruses, spyware, or other similar harmful or intrusive program code posted, submitted or transmitted by you on the Services, or on any Third Party Platform; and/or (e) any claim that one of your postings, User Ideas or Submissions caused damage to a third party, including without limitation, libel, defamation, loss of or harm to reputation or any other damage whatsoever.
Any claim or cause of action arising out of or related to use of the Services or the Content, and including any Services available on or through any Third Party Platform, or the Terms (including the Terms of Use and/or Privacy Policy) must be filed within 1 year after such claim or cause or action arose regardless of any statutes or law to the contrary. In the event any such claim or cause of action is not filed within such 1 year period, such claim or cause of action are forever barred.
The Terms are governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law that would require the application of the laws of another jurisdiction.
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration between you and Ziply, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Ziply are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Ziply otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Any disputes between you and Ziply relating to the Services or the Content, and including the Services available on or through any Third Party Platform, that involve a claim of less than $5,000 must be resolved exclusively through binding non-appearance-based arbitration. A party electing arbitration shall initiate proceedings by filing an arbitration demand with the American Arbitration Association (AAA). The arbitration proceedings shall be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes. In addition, you and Ziply agree that the following rules shall apply to the arbitration proceedings: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any disputes between you and Ziply that involve a claim of more than $5,000 are subject to the exclusive jurisdiction of the Federal and State courts located in Los Angeles, California.
ARBITRATOR'S DECISION.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Ziply will not seek, and hereby waives all rights Ziply may have under applicable law to recover, attorneys' fees and expenses if Ziply prevail in arbitration.
All notices required or permitted to be given under this Agreement must be in writing and shall be given by personal delivery, registered or certified mail, or Federal Express or other nationally recognized courier service which regularly tracks its packages, if to Ziply to its Registered Agent with the State of Wyoming, and if to you, to the e-mail and/or postal address associated with your Account. Notices, if personally delivered, shall be deemed to have been received on the date of delivery; if by registered or certified mail, on the third business day after mailing; if by Federal Express or e-mail, on the second business day after deposit with the service. You may not send any notices under this Section to Ziply via e-mail.
If any provision of the Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between you and Ziply relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. The Terms are not assignable, transferable or sublicensable by you except with Ziply's prior written consent. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. Ziply's performance of the Terms is subject to existing laws and legal process, and nothing contained in the Terms is in derogation of Ziply's right to comply with governmental, court, and law enforcement requests or requirements relating to your access and/or use of the Services or the Content and including the Services available on or through any Third Party Platform, or information provided to or gathered by Ziply with respect to such access and/or use. A printed version of the Terms and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The parties agree that all correspondence relating to these Terms of Use, must be written in the English language.
