Zoey Terms of Service
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 opening an account and using the Company’s service (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 the Company will use the email address supplied by you as the primary method for communicating with you.
- 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 Company’s 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.
- 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 to firstname.lastname@example.org.
Activating Your Account
- 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.
Prohibitions in General
- 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, copyright laws).
- You agree not to reproduce, duplicate, copy, sell, resell 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.
Rights of the Company
- The Company reserves the right to modify or terminate the Service for any reason (including, without limitation, if the Company suspects you of engaging in fraudulent activities) and without notice at any time.
- 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 person’s 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 has the right to provide its services to your competitors. It makes no promise of exclusivity in any particular market segment. You further acknowledge and agree that Company employees and contractors may also be Company customers or members and that they may compete with you, although they may not use your confidential information in doing so.
- 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.
Limitations of Liability
- 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. 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.
- You agree to indemnify and hold the Company, its affiliates and their respective owners, shareholders, officers, directors, agents, employees, consultants and independent contractors (collectively, the “Indemnitees”) harmless from any claims (groundless or otherwise), demands, suits, actions, proceedings at law or in equity, liabilities, losses, damages, payments, deficiencies, settlements, penalties, fines, costs and legal and other expenses (including reasonable fees and disbursements of counsel selected by the Company) asserted against any Indemnitee or incurred by any Indemnitee by any third party, arising out of or in connection with your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
- 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 to email@example.com, you hereby grant to the Company a revocable, 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, in any manner and for any purpose (including, but not limited to, commercial and marketing purposes) that the Company deems appropriate in its sole discretion. 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. 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 Company’s 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. The Company presently does not intend to share your Analytic Data with, or sell it to, any third party but reserves the right to do so. 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 Store’s 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.
- “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 Company’s 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.
Payment of Fees
- 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 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 Store’s administration console. Account owners have three (3) business days 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 three (3) business day period.
- 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 https://support.zoey.com/hc/en-us/requests/new and 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 https://support.zoey.com/hc/en-us/requests/new.
- Once your cancellation date arrives, all of your Store Content will be immediately deleted from the Service. Deletion of all data is final. 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 by posting the changes to the Company’s web site (zoey.com) or the administration menu of your Store via an announcement.
- The Company reserves the right at any time to modify or discontinue the Service (or any part thereof) with or without notice.
- The Company shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
- The Company may provide you with access to third party tools over which the Company neither monitors nor has any control, input or responsibility.
- You acknowledge and agree that the Company provides access to such tools 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 optional third party tools, which you use at your own risk and discretion.
- You are responsible for familiarizing yourself with, and approving the terms on which, tools are provided by any third party provider.
- You are strongly encouraged to seek specialist advice before using or relying on any tools. 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.
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 Company’s 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 Company’s designated agent using the Company’s 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 Company’s 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 our DMCA Notice and Takedown Procedure.
- This Agreement contains the entire agreement between you and the Company with respect to the subject matter hereof and supersedes all prior agreements, whether written or oral, with respect thereto (including, without limitation, any prior versions of the Terms of Service).
- 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 L4 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 L4 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 L4.
- 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 Company’s sole and absolute discretion. Any purported assignment in violation of this Agreement shall be null and void ab initio and of no legal effect.
- 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 L shall survive the expiration or termination of this Agreement.
- 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.
Last updated February 29, 2016