These TERMS OF SERVICE constitute a legal binding contractual agreement (the Agreement) between Zoey Inc., a Delaware corporation (the Company or us), and you. By (a) clicking on the I agree to the terms of the Zoey Terms of Service checkbox, and/or (b) opening an account and using the Companys service, i.e. hosting your ecommerce store on our Platform and/or using our App Store (both referred to collectively as the Service), you agree to be bound by the terms of this Agreement.
You represent and warrant that you are 18 years or older or at least the age of majority in the jurisdiction where you reside or from which you use the Service.
You represent and warrant that, when completing the signup process to upgrade from a trial subscription to a paid subscription for the Service, you will have provided your full legal name, a valid email address, and any other information needed in order to complete the signup process.
You acknowledge and agree that you alone are responsible for keeping your password secure. The Company shall not be liable to you under any circumstances for any loss or damage from your failure to maintain the security of your account and password.
You acknowledge and agree that you alone are responsible for all activity on and content uploaded to your ecommerce store (your Store) hosted on the Companys Platform. With respect to the content on your Store (Store Content), this includes, without limitation, data, graphics, photos and links.
Any breach or violation by you of any term of this Agreement as determined in the sole discretion of the Company will result in an immediate termination of your account and your ability to utilize the Service (the Platform, the App Store, or both).
Technical support is only provided to paying Account Owners (as defined in Section B1 below).
You acknowledge and agree that your Store Content (excluding credit card information) may be transferred unencrypted and involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
Questions about this Agreement should be sent .
Unless you are signing up for your employer (see Section B2 below), the person signing up for the Service will be the contracting party (Account Owner) for the purposes of this Agreement. The Account Owner will also be the person who is authorized to use any corresponding account the Company may provide to the Account Owner in connection with the Service.
If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If that is the case, then you represent and warrant that you have the requisite legal authority to bind your employer to this Agreement.
You may neither use the Service for any illegal or unauthorized purpose nor in violation of any laws in your federal, provincial, state and local jurisdiction (including, without limitation, intellectual property laws).
You agree not to reproduce, duplicate, copy, make derivative works, sell, resell, license or sublicense or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by the Company, which the Company may grant or deny in its sole and absolute discretion.
You are prohibited from transmitting any worms or viruses or any code of a destructive nature.
You shall not purchase search engine or other pay per click keywords (e.g., Google AdWords) or domain names that use the Company name or Company trademarks and/or variations and misspellings thereof.
You agree not to use any of the Services (including the Companys software, technology or intellectual property) for the purpose of competing with the Company, or in order to assist third parties to compete with the Company.
You will not provide us, or make accessible to us, any personal information of the users of your Store, without obtaining all consents and permissions required under any applicable laws.
You will not, in any manner, extract, retrieve, index and/or datamine any information or data of or related to the Services.
If the Company suspects you of engaging in fraudulent activities, the Company may terminate the Service without providing you with a notice.
The Company reserves the right to refuse service to anyone for any reason at any time to the fullest extent allowed under applicable law.
The Company reserves the right, but is under no obligation, to remove Store Content and Accounts containing content that the Company determines in our sole and absolute discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any persons intellectual property rights or this Agreement.
Verbal or written abuse of any kind (including threats of abuse or retribution) of any Company customer or member or any employee, consultant, independent contractor, director or shareholder of the Company or any of its affiliates will result in immediate account termination.
The Company does not pre-screen Store Content. The Company has the sole and absolute discretion to refuse or remove any Store Content that is available via the Service.
The Company makes no promise of exclusivity in any particular market segment and may contract with any third party (including your competitors).
In the event a dispute arises with respect to the ownership of any account, the Company shall have the right to request documentation from the disputing parties to determine or confirm account ownership. Documentation may include, without limitation, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file and other information pertinent to the determination of account ownership.
The Company has the right to make the final determination, in its sole and absolute judgment, as to the identity of the rightful owner of any account and, if necessary, to transfer an account to the rightful owner. If the Company is unable to determine the rightful account owner, the Company reserves the right to temporarily disable the account in question until resolution has been determined between the disputing parties.
Warranty Disclaimer; Limitations of Liability; Indemnification
YOUR USE OF THE SERVICE IS AT YOUR SOLE AND ABSOLUTE RISK. IT IS PROVIDED TO YOU ON AN AS IS AND AS AVAILABLE BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING (WITHOUT LIMITATION) THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING (WITHOUT LIMITATION) LOST PROFITS, LOST INCOME, GOODWILL IMPAIRMENT, LOST DATA AND/OR OTHER INTANGIBLE LOSSES, WHETHER OR NOT THE COMPANY HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED, FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR THE USE OR THE INABILITY TO USE THE SERVICE.
IF THE COMPANY IS FOUND LIABLE BY A COMPETENT AUTHORITY, THE COMPANYS TOTAL LIABILITY FOR DAMAGES OR COSTS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY RECEIVED BY THE COMPANY FOR THE SERVICE IN QUESTION, IF ANY, DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY SUCH CLAIM OR CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
The Company does not warrant that the Service will be uninterrupted, timely, secure or error-free.
The Company does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
The Company does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service, will meet your expectations, or that any errors in the Service will be corrected.
Intellectual Property and Customer Content
The Company does not claim any intellectual property rights over the material you provide to the Company through the Service, including Store Content. You retain ownership over all such material, including Store Content that you upload. You can remove your Store at any time by deleting your account. This will also remove all content you have stored on the Service, including Store Content.
By uploading Store Content, you agree: (a) to allow other internet users to view your Store Content; (b) to allow the Company to display and store your Store Content; and (c) that the Company can, at any time, review all the Store Content submitted by you to or through the Service.
In addition to the rights that you granted to the Company in Section F2 above, unless you submit an opt out email , you hereby grant to the Company a transferable, non-exclusive, fully-paid-up, royalty-free, worldwide license to: (a) use, copy, distribute, reproduce, modify, create derivative works of, adapt, publish, translate, publicly perform, and publicly display your Store Content (or any modification thereto), including, without limitation, your logo, service marks, trademarks, trade dress and other branded marks (Marks), in whole or in part, in any format, medium or application now known or later developed, and (b) use your Store Content, including, without limitation, your Marks, for the purpose of providing the Platform and hosting the Store on the Platform, for case studies and marketing purposes. The provisions in this Section are not intended to and do not have the effect of transferring any ownership (including intellectual property rights) you may have in your Store Content (including, without limitation, your Marks) or granting any license (including intellectual property rights) to your Store Content (including, without limitation, your Marks) other than as necessary for the Company to provide the Service.
You are solely responsible for ensuring that your Store Content fully complies with any applicable laws or regulations.
The Company will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any materials or information provided by you to the Company which is not publicly known and granting you a commercial advantage. Confidential information does not include information that: (a) was in the public domain at the time the Company received it; (b) falls into the public domain after the Company received it through no fault of the Company; (c) the Company received from someone other than you without breach of the Companys or their confidentiality obligations; or (d) the Company is required by law to disclose.
The Company has the right to collect information and data about your Store, including, without limitation, visitor traffic, sales transaction performance and related matters (Analytic Data). The Company will use your Analytic Data for internal research and development purposes, or for commercial purposes. Prior to the sharing or selling of your Analytic Data, all of your Analytic Data will be aggregated and anonymized so that any third party receiving it will neither know the specific Store from which it came nor any specific details relating to your Stores transactions or traffic. You will not be entitled to any compensation or credit in the event the Company decides to either sell or share your Analytic Data with any third party.
We will have a perpetual and irrevocable right to incorporate any feedback we receive in connection with the Service into any of our current or future technologies, products or services, without providing you any notice or compensation.
Zoey, Zoey Commerce and our logos (both words and design) either are trademarks, service marks, or registered trademarks of the Company, and may not be copied, imitated or used, in whole or in part without the Companys prior express written consent, which consent may be withheld in our sole discretion. In addition, all page headers, custom graphics, design and user interface elements, and scripts are service marks, trademarks and/or trade dress of the Company and may not be copied, imitated or used, in whole or in part, without our prior written permission, which consent may be withheld in our sole discretion. All other marks or logos not owned by the Company are the property of their respective owners.
You agree to cooperate with us in protecting our rights in the Service or other technology used by us in the scope of this Agreement, including our confidential information. You also agree to immediately notify us in the event that you become aware of any infringement of our rights.
A valid credit card is not required to start a trial subscription. However, a valid credit card is required to upgrade from a trial subscription to either (a) a paid subscription or (b) a pre-live subscription.
The Service will be billed in 30 day or 365 day intervals. When your billing period is over, the Account Owner will be sent an invoice via the email provided. In addition, an invoice will appear on the account page of your Stores administration console. Account owners have one (1) business day after receipt of an invoice to dispute all or part of that invoice. The Account Owner irrevocably waives its right to dispute that invoice at a later time if it fails to do so during such one (1) business day period.
All subscription changes (monthly to yearly, yearly to monthly, or as otherwise defined) will be processed on the first day of the following billing cycle.
All fees are exclusive of all federal, provincial, state or other governmental sales, local, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (Taxes). Taxes are in addition to fees for the Service and will be billed to your credit card if required by applicable law. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such a certificate.
The Company does not provide refunds under any circumstances.
You may request a cancellation date for your subscription at any time by creating a ticket at then following the specific instructions set forth. However,
the actual date of your cancellation will be at 12:01 a.m. on the first day after your paid subscription expires as the Company does not provide refunds under any circumstances
. You are entitled to use your Store until the actual cancellation date or, if you wish to remove your Store from public view prior to your cancellation date, you may do so by creating a ticket at
Once your cancellation date arrives, all of your Store Content will be immediately deleted from the Service.
Please ensure that cancellation is in your best interests before doing so.
Modifications to the Service and Prices
Prices for using the Service are subject to change upon 30 days notice from the Company. Such notice may be provided at any time via an email to the Account Owner, by posting the changes to the Companys Platform or App Store (as applicable) or the administration menu of your Store via an announcement.
The Company reserves the right to modify the Service for any reason without notice at any time. If the Company suspects you of engaging in fraudulent activities, the Company may terminate the Service without providing you with a notice. The Company will make efforts to publish on the Service (the Platform or the App Store, as the case may be), notices of material changes that are likely to affect your ability to use the Service.
The Company shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
In the scope of our App Store, the Company may provide you with access to (a) third party tools, apps, or themes (collectively, Third Party Apps) over which the Company neither monitors nor has any control, input or responsibility, and (b) the Companys proprietary tools, apps of themes (Company Apps, and, together with the Third Party Apps the Apps).
Your ability to use or purchase proprietary or third party Apps may depend on several factors such as the level of your subscription, the nature of the App, the pricing of the App (some may be subject to fees in addition to the monthly recurring fees for the Platform). Please read theZoey App Store Termsfor additional information.
You acknowledge and agree that the Company provides access to Third Party Apps on an as is basis and without any warranties, representations or conditions of any kind whatsoever and without any endorsement. The Company shall have no liability whatsoever arising from or relating to your use of Third Party Apps, which you use at your own risk and discretion.
You are responsible for familiarizing yourself with, and approving the terms on which, Third Party Apps are provided by any third party provider.
You are strongly encouraged to seek specialist advice before using or relying on any Third Party Apps. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge end users.
Note that Apps may be subject to export control laws. You will not ship, transfer, or export the Apps into any country, or use the Apps in any manner, prohibited by applicable laws.
Digital Millennium Copyright Act (DMCA) Notice and Takedown Procedure
The Company supports strongly the protection of intellectual property rights and asks you to do the same. The Companys policy is to respond to all notices of alleged copyright infringement.
If someone believes that you are infringing their intellectual property rights, they can send a Digital Millennium Copyright Act (DMCA) Notice to the Companys designated agent using the Companys form.
Upon receiving a DMCA Notice, the Company may remove or disable access to the material claimed to be infringing the copyright(s) of another.
Once provided with a notice of takedown, you can reply with a counter notification using the Companys form if you object to the complaint.
The original complainant has fourteen (14) business days after the Company receives a counter notification to seek a court order restraining the merchant from engaging in the infringing activity; otherwise, the Company will restore the material.
For more information, see ourDMCA Notice and Takedown Procedure.
Certain links provided in the Services refer you to non-Company sites or services. Such sites and services are provided solely as a convenience to you and are not under our control.
We are not responsible for the availability of such external sites or services, do not endorse them and we are not responsible or liable for any content or other information available via such sites and services.
We are not responsible or liable for such sites and services privacy practices and/or any other practices. Your access to, use of and reliance upon any such sites, services and content and your dealings with such third parties are at your sole risk and expense.
We reserve the right to terminate access to any of these resources at any time.
You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused, by or in connection with you use of or reliance on any services, content, products or other materials available on or through such sites or services.
No provision of this Agreement may be waived unless the party waiving compliance evidences such waiver in a written instrument signed by such party. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
This Agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law rules thereof.
You and the Company hereby expressly agree that if, under any circumstances, any dispute or controversy arising out of or relating to or in any way connected with this Agreement shall be the subject of any court action at law or in equity, such action shall be filed exclusively in (a) the United States District Court for the Southern District of New York or, if such court is not available because of jurisdictional reasons, (b) the Supreme Court of the State of New York, New York County. You and the Company agree not to commence any action, suit or other proceeding arising from, relating to, or in connection with this Agreement except in such courts and you and the Company irrevocably and unconditionally consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action, and hereby grant jurisdiction to such courts and to any appellate courts having jurisdiction over appeals from such courts or review of such proceedings. Because the breach of the provisions of this Section M4 would cause irreparable harm and significant injury to the Company, which would be difficult to ascertain and which may not be compensable by damages alone, you agree that the Company has the right to enforce the provisions of this Section M4 by injunction, specific performance or other equitable relief in addition to any and all other remedies available to the Company without showing or proving any actual damage to the Company. The Company will be entitled to recover all reasonable costs and expenses, including but not limited to all reasonable attorneys fees, expert and consultants fees, incurred in connection with the enforcement of this Section M4.
This Agreement is for the sole benefit of the parties hereto and no third party, either directly or indirectly, is an intended or unintended third party beneficiary hereunder.
The Company shall neither be held responsible nor be deemed to be in default under this Agreement due to any delay in performance or failure in performance of any of its obligations hereunder if such delay or failure is the result of causes beyond its control. Such causes shall include, without limitation, acts of God, strikes, lockouts, riots, insurrections, civil disturbances, sabotage, terrorist acts, embargoes, blockades, acts of war, acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), governmental regulations superimposed after the fact, power failures, internet service disruptions, fires, explosions, floods, accidents, epidemics, earthquakes, tornadoes, hurricanes, tropical storms, snow, rain or ice storms, or other natural or man-made disasters, and all occurrences similar to the foregoing.
The Company may assign this Agreement to any of its affiliates or successors. You may not assign this Agreement to any person without the prior written consent of the Company, which consent may be granted or denied in the Companys sole and absolute discretion. Any purported assignment in violation of this Agreement shall be null and void
If any provisions of this Agreement for any reason shall be held to be illegal, invalid or unenforceable, such illegality shall not affect any other provision of this Agreement, this Agreement shall be amended so as to enforce the illegal, invalid or unenforceable provision to the maximum extent permitted by applicable law, and the parties shall cooperate in good faith to further modify this Agreement so as to preserve to the maximum extent possible the intended benefits to be received by the parties.
Sections E and M shall survive the expiration or termination of this Agreement.
Upon expiration or termination of this Agreement, for any reason, (a) any amounts due and owing to Zoey prior to such termination will be due and payable by you, (b) the rights and licenses granted hereunder to you shall immediately expire, (c) each receiving party shall cease using, and either return to disclosing party, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any confidential information in the receiving partys possession, and shall certify in writing upon disclosing partys request that such actions have occurred.
The headings of the sections hereof are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning hereof.
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