Last modified October 29, 2014
Welcome to The ZYX. These terms and conditions (“Terms of Service”) govern your access to and use of The ZYX Integrated Technologies, LLC’s M-App services and website accessible via www.thezyx.com, including successor domain names or sites (the “Site”), and any and all information, text, graphics, photos, or other materials uploaded, downloaded, or appearing on the Services (as defined below).
Wherever used in these Terms of Service, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service.
The ZYX reserves the right, at any time, to update and change any or all of these Terms of Service, in its sole discretion, including but not limited to the fees and charges associated with the use of the Services. If The ZYX does so, it will post the modified Terms of Service on the Site, though we will notify you of any changes that, in our sole discretion, materially impact these Terms of Service. Continued use of the Services after any such changes have been made shall constitute your consent to such changes. You are responsible for regularly reviewing the most current version of the Terms of Service, which are currently available at: http://www.thezyx.com/terms. When The ZYX changes these Terms of Service, The ZYX will modify the “Last Modified” date above.
“Authorized Form” means a document issued by The ZYX and executed or otherwise agreed upon by authorized representatives of the Parties which specifies, among other things, a description of the Services, the Fees (as defined below), the Term (as defined below), and any other details specifically related to the Services.
“Authorized Users” mean individuals who are directly accessing the Services via an online sign-up process, or individual users authorized by you to use the Services and who you have supplied user identifications and passwords to. Authorized Users may include your employees, consultants, contractors, agents, or your other designees, but shall not include any employee or agent of any The ZYX competitor.
“Customer Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available to The ZYX by or on behalf in relation to the use of the Services.
“Fair Use Policy” means the limits placed on usage as described in Section 2.4
“Services” means The ZYX M-App and ZYX Player services made available via The ZYX’s proprietary software delivered through the Site and mobile applications that enable you and Authorized Users to manage and publish social media content to multiple Supported Platforms, and conduct sales of physical and digital goods through Facebook, and allows users to access digital content from across multiple social media platforms.
“Supported Platform(s)” means the social networking site(s) currently supported by the Services, including Twitter, Facebook, Instagram, and other social networking and digital content sites as described via the Site.
“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any installments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).
2.1 Services and Support
During the Term (defined below), subject to the terms and conditions of this Agreement, and solely for your personal or internal business purposes, The ZYX shall use commercially reasonable efforts to make The ZYX M-App and ZYX Player services available to you and your Authorized Users for the accounts you open. The ZYX will provide M-App and ZYX Player customers with standard support 24 hours per day. Expected response times after a support request has been submitted by an M-App or ZYX Player user shall be within 24 hours from the time the ticket is logged.
2.2 Updates and Functionalities
You acknowledge that from time to time The ZYX may apply updates to the Services and that such updates may result in changes in the appearance and/or the functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, The ZYX shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). You acknowledge that the Services interoperate with several Supported Platforms, and that the Services provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platform cease to make their programs available to The ZYX on reasonable terms, The ZYX may cease to provide such features to you without entitling you to a refund, credit, or other compensation.
2.3 Acceptable Use
You shall (i) be responsible for your and your Authorized Users’ compliance with these Terms of Service, including the Fair Use Policy; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of the means by which you acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including keeping your password and username confidential and not permitting any third party to access or use your user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through your account in connection with the Services; (v) promptly notify The ZYX if you become aware of or reasonably suspect any security breach, including and loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations; (vii) comply in all respects with all applicable terms of the Third-Party Services that you subscribe to or otherwise access in connection with your use of the Services. You must not (a) make the Services available to anyone other than to your Authorized Users; (b) sell, trade, or otherwise transfer your account to another party; (c) use the Services to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (d) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component (e) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (f) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (g) attempt to gain unauthorized access to the Services or its related systems or networks; or (h) authorize, permit, or encourage any third party to do any of the above.
2.4 Fair Use Policy
The ZYX may suspend your access to the Services for abusive practices that degrade the performance of the Services for you and/or other customers of The ZYX.
2.5 Third-Party Products and Services
You acknowledge that the Services may enable or assist you to access, interact with, and/or purchase services from Supported Platforms and other third parties via third-party websites or applications (collectively the “Third-Party Services”). When you access the Third-Party Services, you will do so at your own risk. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not The ZYX. The ZYX makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.
You acknowledge that the rights granted to you under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict The ZYX’s right to license, sell, or otherwise make available the Services to any third party or perform any services for any third party.
3.1 The ZYX Services
As between you and The ZYX, The ZYX retains all rights, title, and interest in and to the Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of The ZYX’s rights or interests therein or any other ZYX intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by The ZYX. You may from time to time provide suggestions, comments, or other feedback to The ZYX with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for The ZYX notwithstanding anything else. You shall, and hereby do, grant The ZYX a non-exclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
3.2 Customer Content
You grant The ZYX a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 9.1) license, without a right of sub-license, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of supporting your use of the Services and providing the Services to you. The ZYX may also use Customer Content for the purpose of supporting and developing the Site, provided that when doing so, The ZYX will shall aggregate and anonymize Customer Content when possible. Subject only to the limited license expressly granted herein, you and your Authorized Users shall retain all rights, title, and interest in and to the Customer Content and all intellectual property rights therein. Nothing in this Agreement will confer on The ZYX any right of ownership or interest in the Customer Content or the intellectual property rights therein.
3.3 Responsibility for Customer Content
4.1 Applicable Fees
The ZYX Player and certain M-App services are free to use for all Customers. If an Authorization Form is issued for the use of some M-App services, you agree to pay all fees as and when described per the Authorization Form(s).
4.2 Collection of Fees
Sales through the M-App service are made through Paypal. The customer hereby acknowledges and agrees to the fees and service charges assessed by Paypal and The ZYX, and acknowledges that the fees are typically calculated as a percentage of gross sales in the M-App store.
4.3 Taxes and Withholdings
You are responsible for paying all Taxes associated with the use of the Services. If The ZYX has a legal obligation to pay or collect Taxes for which you are responsible under this Section, the appropriate amount shall be invoiced and paid by you, unless you provide The ZYX with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, The ZYX receives an amount equal to the sum it would have received had no such deduction or withholding been made.
5.1 ZYX Player and M-App Services
If you sign-up for an M-App account this Agreement shall commence on the day you access the Services for the first time and shall continue until your account is cancelled and you cease using our Services.
If you violate the letter or spirit of these Terms of Service, abuse the Services, or otherwise create risk or possible legal exposure to The ZYX, The ZYX can terminate or suspend your ZYX Account at our sole discretion. The ZYX will notify you by email or at the next time you attempt to access your account. You may also cancel or disable your ZYX Account at any time.
5.3 Effects of Termination
Upon termination of this Agreement for any reason, (i) you will immediately cease all use of the Services; (ii) you will have no further access to your accounts provided by The ZYX; and (iii) you will pay The ZYX all unpaid amounts owed to The ZYX.
Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE ZYX EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ZYX SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNITERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, THE ZYX DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE ZYX OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE ZYX DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIBAILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE CUSTOMER CONTENT OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. THE ZYX DOES NOT CONTROL OR VET CUSTOMER CONTENT AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. THE ZYX IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS. THE ZYX EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IF YOU ARE DISSATISFIED OR HARMED BY THE ZYX OR ANYTHING RELATED TO THE ZYX, YOU MAY CANCEL YOUR ZYX ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 5.2 (TERMINATION), AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND THE ZYX’S SOLE AND EXCLUSIVE LIABILITY).
7.1 Your Indemnification
You shall defend, indemnify, and hold harmless The ZYX, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorney’s fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the Customer Content or your use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, Customer Content, or your breach of Section 2.3 or 2.5; or (c) relating to, or arising from, Third-Party Services.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE ZYX’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) THE FEES PAID BY YOU FOR THE SERVICES HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE, AND (B) US$500. THE ZYX DOES NOT OFFER ANY WARRANTY OR REMEDIES FOR THE INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ZYX, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL THE ZYX BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVIES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF THE ZYX WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HERERIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NORTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF THE ZYX FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF THE ZYX, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF THE ZYX; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law, or otherwise, without the prior written consent of The ZYX (not to be unreasonably withheld), and any attempted assignment or transfer without such consent will be void. The ZYX may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. The ZYX may also substitute, by way of unilateral novation, effective upon notice to you, The ZYX Integrated Technologies, LLC for any third party that assumes our rights and obligations under this Agreement.
The ZYX reserves the right to modify, supplement, or replace the terms of this Agreement, effective upon posting on The ZYX website or notifying you otherwise. Your continued use of the Services after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new terms. Except for changes made by The ZYX as described here, no other amendment or modification of this Agreement shall be effective unless set forth in a written agreement bearing a written signature by The ZYX and you.
Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
For purposes of service messages and notices about the Services, The ZYX may place a banner notice across its pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from The ZYX to an email address associated with your account, even if The ZYX has other contact information. You also agree that The ZYX may communicate with you through your ZYX account or through other means including email, mobile number, telephone, or delivery services including the postal service about your ZYX account or services associated with The ZYX. You acknowledge and agree that The ZYX shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. You may provide legal notice to The ZYX via email at email@example.com with a duplicate copy sent via registered mail to The ZYX Integrated Technologies, LLC, 1751 University Ave., #500, San Diego, California 92103, Attention: Chief Legal Officer. The email address provided may be updated as part of any update to these Terms of Service.
No waiver or any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement, except that any provision which does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provisions being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or any similar provision.
9.6 Nature of Relationship
No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
9.7 Force Majeure
Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts, or labor disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
9.8 Governing Law
This Agreement and your relationship with The ZYX shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws of the state of Delaware, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of the state of California. In any action proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorney’s fees.
9.9 Entire Agreement