ZERIGO HEALTH, INC.
The above websites, applications, products, and solutions are collectively referred to herein as the Services.
These Terms are entered into by and between Zerigo and any individual or entity using or accessing any Service (Customer, You, and Your). If You use the Services on behalf of a company or other entity then "You" includes You and that entity, and You represent and warrant that (a) You are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) You agree to these Terms on the entity's behalf.
Please read these Terms carefully. These Terms describe Your responsibilities, Zerigo's liability, and the liability of third parties related to the Services. All users of the Services must accept and comply with the terms and conditions set forth herein. BY CLICKING A BOX INDICATING ACCEPTANCE OF THESE TERMS, PLACING AN ORDER FOR ANY ZERIGO PRODUCT, ZERIGO SERVICE AND/OR ZERIGO SOLUTION, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU ACCEPT ALL OF THE PROVISIONS OF THESE TERMS AND REPRESENT TO US THAT YOU ARE LEGALLY COMPETENT TO ENTER INTO AND AGREE TO THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, THEN YOU ARE NOT AUTHORIZED TO USE THE SERVICES.
THESE TERMS INCLUDE (1) AN ARBITRATION PROVISION; AND (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. YOU HAVE THE RIGHT TO OPT-OUT OF THE ARBITRATION PROVISION AS FURTHER EXPLAINED IN SECTION 15 (ARBITRATION AND CLASS ACTION WAIVER).
YOU UNDERSTAND THAT YOU MAY VOICE GRIEVANCES / COMPLAINTS REGARDING THE SERVICES WITHOUT REPRISAL BY CONTACTING THE FOLLOWING:
Telephone calls with Zerigo may be recorded or monitored.
1.2 Program Sponsor . To the extent You receive the Services through Your employer, Your family member's employer, or other sponsoring organization (each, a "Program Sponsor"), You understand that Your use of the Services may be subject to additional terms as set forth in the agreement between Zerigo and the Program Sponsor and that per such agreement, we may provide Your Information to Your Program Sponsor, including information regarding whether, and to what extent You have participated in the Services.
2. WHO MAY USE THE SERVICES
You must be at least 18 years of age and a resident of the United States of America to use the Services. Minors under the age of majority in their jurisdiction but that are at least 13 years of age are only permitted to use the Services if the minor's parent or guardian accepts these Terms on the minor's behalf prior to use of the Services. Children under the age of 13 are not permitted to use the Services.
3.1 User Account. In order to use certain Services (including to register a Zerigo Product), You must register an account on the Services (User Account). If You are the parent or guardian of a person under the age of 18, and You decide to make the Services available to such You may establish the User Account in Your name for the benefit of such minor. You are responsible for providing and maintaining up-to-date and accurate contact information, including Your telephone number and email address, and other information on Your User Account.
3.2 Authorized User. Except for any minor beneficiary of the User Account, You are the sole authorized user of Your User Account. You are responsible for maintaining the confidentiality of any password, account number and other log-in information provided by You or Zerigo for accessing the Services. You are solely and fully responsible for all activities that occur under Your User Account. Zerigo does not have any control over the use of Your or any user's User Accounts, and Zerigo expressly disclaims any liability derived therefrom. Should You suspect that any unauthorized party may be using Your (or another user's) password or account, or You suspect any other breach of security, You will cease all use of such password or account and contact Zerigo immediately by emailing email@example.com.
3.3 Account Updates. If (i) Your contact information changes or (ii) You wish to update Your preferences with respect to SMS messaging or other communications from us, You may correct, delete inaccuracies, or amend Your user information and preferences by making the change on Your User Account or by emailing us at firstname.lastname@example.org.
4. CONSENT TO EMAIL AND TEXT MESSAGING
Zerigo may contact You through SMS/MMS text messaging or e-mail, which allows Zerigo to efficiently exchange information with patients using the Services. You understand that communications, including those involving personal health information, between You and Zerigo may be transmitted by electronic means, including, without limitation through SMS/MMS text messaging, email, and/or written, visual, or audio messages on the Services to the fullest extent permitted by applicable law. You may refuse to permit Zerigo to communicate with You through email or text messaging however, refusal to do so may result in an inability to utilize the full scope of the services offered by Zerigo including the full utility of the Zerigo Mobile App.
5. TERMS REGARDING USE OF ZERIGO DEVICES
5.1 Physician Consultation. You agree that before using any Zerigo Device, will consult with a licensed physician or other licensed health care provider who is authorized to prescribe the medical device for Your use and to discuss whether the Zerigo Device is appropriate for You.
5.2 PRESCRIPTION REQUIRED BEFORE SHIPMENT. A VALID PRESCRIPTION MUST BE OBTAINED FROM A LICENSED PHYSICIAN OR OTHER QUALIFIED LICENSED HEALTH CARE PROFESSIONAL IN ORDER FOR YOU, OR THE PERSON FOR WHOM YOU ARE ACTING, TO ACQUIRE AND USE THE ZERIGO DEVICE AND YOU UNDERSTAND THAT THE ZERIGO DEVICES AND RELATED SERVICES MAY ONLY BE ACQUIRED AND USED IN THE UNITED STATES OF AMERICA. Within a reasonable after receipt of a valid prescription, and payment in full for the Zerigo Device and other Zerigo Services ordered, the Zerigo Device will be shipped to You.
5.3 Mobile Phone Requirements.
You understand and acknowledge that a smart phone with either an Android or iOS operating system capable of accessing the Zerigo Mobile App is required for use of the Zerigo Device. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that You need to download, install, and use the Zerigo Mobile App.
You agree to permit the Zerigo Mobile App to access other software, functions and features of Your smart phone or other authorized device necessary and/or desirable for the operation of the applicable Zerigo Device, including, without limitation, camera, microphone, calendar, messaging, email, audio, video, other mobile applications and/or any other software, function, or feature. Zerigo supports the most current version of the Zerigo Mobile App as well as the two (2) immediately preceding versions. All versions of the Zerigo Mobile App older than the foregoing, will not be supported by Zerigo and users should immediately download the newest version of the Zerigo Mobile App to ensure proper operation of the App.
5.4 CONSENT TO USE OF ZERIGOCARE GUIDES.
An onboarding call with a ZerigoCare Guide shall be completed prior to use of the Zerigo Device.
A "ZerigoCare Guide" is a member of Zerigo who
trains and educates Zerigo Device users on (i) home phototherapy with the
Zerigo Solution, (ii) the use of the Zerigo Device, (iii) the use of the Zerigo
Mobile App, and (iv) the operation of the Zerigo Solution. ZerigoCare Guides
are available by telephone and through electronic means to provide technical support
in connection with Your use of the Zerigo Device and/or the Zerigo Mobile App.
In addition, ZerigoCare Guides encourage You to comply with the treatment plan
prescribed by Your physician or other health care provider. ZerigoCare Guides
(a) have access to Your health information collected and stored by Zerigo, (b)
may collect and store Your health information You provide, and (c) may
communicate with, collect, and store such information You provide and/or
disclose such information to Your physician and/or other healthcare provider as
You may contact a ZerigoCare Guide to discuss any questions or concerns in
connection with the matters described above by way of the toll-free telephone
number posted on the Zerigo Website and/or the Zerigo Mobile App or through
messaging that may be available on the Zerigo Mobile App and/or the Zerigo
You consent to ZerigoCare Guides initiating contact with You at any time, including, without limitation, after You express interest in purchasing, and/or after You purchase or receive, the Zerigo Device and/or install the Zerigo Mobile App. You also consent to all of the functions of ZerigoCare Guides as described in this section, on the Zerigo Mobile App, on the Zerigo Website, and/or as otherwise expressed in a communication from ZERIGO to You. YOU UNDERSTAND AND ACKNOWLEDGE THAT ZERIGOCARE GUIDES DO NOT, CANNOT AND WILL NOT PROVIDE ANY MEDICAL ADVICE OR MEDICAL TREATMENT AND YOU MUST ALWAYS CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER.
5.5. READING AND COMPLYING WITH THE INFORMATION IN THE ZERIGO DEVICE PATIENT GUIDE. After You obtain a prescription for, and when You receive, the Zerigo Device, You will receive and/or have access to the Zerigo Device Patient Guide (the "Patient Guide"). You agree to read the Patient Guide in its entirety and comply with all of the instructions that are contained within it. If there is anything in the Patient Guide that You do not understand, You may contact a ZerigoCare Guide by phone or through the messaging feature on the Zerigo Mobile App.
5.6. Contraindications. As explained in the Patient Guide, contraindications to the use of the Zerigo Device may include history of photosensitive disorder, history of skin cancer, or current skin cancer. It is also important for You to talk to Your physician if You have very fair skin or a history of atypical moles. Be sure to discuss with Your physician any history of excessive exposure to natural sunlight or phototherapy, immune lowering medications or conditions and current use of any medications that may make You more sensitive to light.
5.7. Progress Checks and Photos When Using the Zerigo Device. As more fully explained in the Patient Guide, use of the Zerigo System and the Zerigo Device requires periodic progress checks, including Your feedback, and photos, and these progress checks are important for Your healing progress and for maintaining control of Your condition. Your progress, including photos, is recorded, and can be viewed by You, Your physician, and Your ZerigoCare Guides.
5.8. Sunburn-Like Reactions. As more fully explained in the Patient Guide, use of the Zerigo Device may result in redness, increased itchiness and tenderness that may be signs of a sunburn-like reaction and/or tanning of the skin. The Patient Guide contains instructions for reducing the likelihood of any sunburn-like reaction and/or tanning. Some medications and dietary supplements when combined with light therapy can increase Your risk of sunburn. Please notify Your physician if You are unsure about the impact Your medication(s) may have on Your reaction to the Zerigo Device. ALWAYS CONSULT WITH YOUR PHYSICIAN AND/OR OTHER HEALTH CARE PROVIDER IF YOU HAVE A BURN REACTION OF ANY TYPE OR SEVERITY.
5.9. ZERIGO DEVICE WARNINGS AND CAUTIONS.
6. USE OF DIGITAL SERVICES.
6.1 Limited License. Subject to the terms and conditions of these Terms, Zerigo grants You a non- exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited license to access and use the software provided to You as part of the Services and to download a single copy of the Zerigo Mobile App solely for Your personal use and for no other purposes.
You are expressly prohibited from using the
Services for any or the following purposes and/or activities:
(a) using software robots, crawlers, spiders, data mining or any other data gathering or extraction tools or methods for any purpose;
(b) obtaining (directly or indirectly) or attempting to obtain contact information, account information, personal information, personally identifiable information, health care information, protected health information and/or any other information or data about any user of the Services, and/or any actual or prospective Zerigo customer;
(c) impersonating another person or entity's identity or conveying or posting any incomplete, false, or misleading information about You or Your affiliation with any person or entity;
(d) disclosing any personal information, personally identifiable information, health-related information, protected health information and/or any other information about any other person or entity without their express consent;
(e) conveying or posting anything on the Services that Zerigo determines, in its sole discretion, to be abusive, harassing, obscene or objectionable content in any way;
(f) using the Services or using any Zerigo Product for any unlawful purposes or to engage in any unlawful conduct;
(g) obtaining any trade secrets, confidential, or proprietary information from or regarding Zerigo;
(h) introducing any viruses, trojan horses, worms, logic bombs or other content or computer code that are or seek to be malicious or technologically harmful into Zerigo systems;
(i) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party's access to or use of the Services or use of any device, software, computer code or routine that causes the same result;
(j) framing or utilizing framing techniques to enclose the Services or any portion thereof;
(k) modifying, downloading, or indexing any of the Services (except caching or as necessary for viewing);
(l) copying, distributing, modifying, adapting, translating, or creating any derivative works based upon all, or any portion, of the Services;
(m) using any metadata, meta tags, or any other hidden text utilizing Zerigo's name, trade names, trademarks, service marks and/or trade dress;
(n) decompiling, disassembling, reverse engineering, or otherwise attempting to derive any source code from the Services or any Zerigo Product;
(o) engaging in direct, indirect, contributory, and/or joint infringement of, and/or inducing a third party to infringe upon, any patents owned by, and/or exclusively licensed to, Zerigo;
(p) interfering with, engaging in theft of, and/or gaining unauthorized access to the Services and/or any other devices, technologies, hardware, or software used in connection with the Services;
(q) removing, defacing, obscuring, or altering any copyright, patent, trademark, or other intellectual property rights notices affixed to, or provided in connection with, the Services or any Zerigo Product;
(r) creating or attempting to create a substitute or similar service or product offering through the use of, or access to the Services;
(s) compromising the safety and essential performance of the Services and/or any other devices, technologies, hardware and/or software used in connection with the Services;
(t) rendering the Services and/or data, systems, servers, and other applications inaccessible to authorized users; and/or
(u) anything other than as expressly permitted under these Terms.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1.Ownership of the Services.All copyrightable content and other materials contained within or on, or used in connection with, the Services including, but not limited to, all intellectual property and technology of the Zerigo Devices and the text, graphics, logos, the "look and feel" of the Services, button icons, pictures, images, audio recordings and files, video recordings and files, software, data, routines, documentation, literary works, and compilations are owned by, or licensed by third parties to, Zerigo and are protected by copyright, trademark and other intellectual property laws. All patent rights, copyrights, trademark rights, trade dress rights, trade secret rights and other intellectual property and other rights applicable to the Services and any Zerigo Products are owned by Zerigo and/or its licensors, and as between You and Zerigo, Zerigo retains ownership of all such rights.
7.2.Trademarks. The word marks and logos used to identify Zerigo as a source of the Services and the Zerigo Products are trademarks and service marks owned exclusively by Zerigo. Any and all aspects of the Services and the Zerigo Products (including, but not limited to product design) that qualify as trade dress are owned exclusively by Zerigo. Zerigo's trademarks, service marks and/or trade dress are protected by trademark laws of the United States and other countries throughout the world. You are not permitted to use in any way any of Zerigo's trademarks, service marks or trade dress.
7.3 User Submissions. It is the policy of Zerigo to decline unsolicited suggestions and ideas. Notwithstanding this policy, with regard to unsolicited suggestions and ideas, inclusive of any inquiries, feedback, suggestions, ideas or other information or content that You provide to Zerigo through the Services or otherwise by e-mail, messaging or other written communication, or transmitted or delivered orally and/or in writing by any other means, including product reviews and/or testimonials (hereinafter referred to as "User Submission(s)"), will be treated as non-proprietary and non-confidential. By communicating, transmitting or posting any User Submissions to Zerigo, through or on the Services or by any other means, You hereby grant Zerigo a non-exclusive, royalty-free, perpetual, assignable, transferable, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, sell, assign, translate, create derivative works from, make, use, offer to sell, sell, distribute and display any User Submissions (including the contents thereof) in any form, media, or technology, whether now known or hereafter developed, alone or as part of other works.
9. USE OF THE ZERIGO MOBILE APP.
9.1 Push Notifications. You may receive push
notifications, local client notifications, text (SMS/MMS) and picture messages,
alerts, emails, or other types of messages directly sent to You in connection
with the Zerigo Mobile App ("Push Messages "). You acknowledge that, when You use
the Zerigo Mobile App, wireless service provider
may charge You fees for data, text messaging and/or other wireless access,
including in connection with Push Messages. You have control over the Push
Messages settings and can opt in or out of these Push Messages through the
Services or through Your mobile device's operating system with
the possible exception of infrequent, important service announcements
and administrative messages). Please check with Your wireless service provider
to determine what fees apply to Your access to and use of the Zerigo Mobile
App, including Your receipt of Push Messages from us. You are solely
responsible for any fee, cost, or expense that You incur to download, install
and/or use the Zerigo Mobile App on Your mobile device, as well as for Your
receipt of push messages from us.
10. Indemnification. You agree to defend, indemnify and hold Zerigo, its subsidiaries and affiliates, and their directors, members, managers, officers, employees, agents, independent contractors, attorneys, partners, licensors and licensees, harmless for, from and against any loss, damages or costs, including reasonable attorneys'; fees, resulting from any third party claim, action, or demand arising from and/or related to (i) Your use of the Services, (ii) Your breach of any duty or obligation that You have under these Terms, (iii) Your violation of any applicable laws, and/or (iv) Your negligence or willful misconduct.
11. LIMITED ZERIGO PRODUCTS WARRANTY.
YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT (A) ZERIGO'S PRODUCTS, INCLUDING THE ZERIGO DEVICE AND ITS ACCESSORIES, ARE SUBJECT TO A LIMITED WARRANTY IN FAVOR OF THE ORIGINAL BUYER OF THE ZERIGO DEVICE ("BUYER") ONLY TO BE FREE FROM MANUFACTURING DEFECTS FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF SHIPMENT, AND (B) THE SOLE AND EXCLUSIVE REMEDY SHALL BE FOR ZERIGO TO REPAIR OR REPLACE THE DEFECTIVE ZERIGO DEVICE AND/OR OTHER ZERIGO PRODUCT OR COMPONENT THEREOF PURCHASED BY BUYER, PROVIDED THAT BUYER GIVES WRITTEN NOTICE TO ZERIGO OF BUYER'S CLAIM OF DEFECT AND BUYER COMPLIES WITH ZERIGO'S INSTRUCTIONS FOR RETURNING THE DEFECTIVE PRODUCT TO ZERIGO OR ZERIGO'S AUTHORIZED AGENT. ZERIGO MAY OFFER BUYER THE OPPORTUNITY TO EXTEND THE EXPIRATION DATE OF THIS LIMITED REPAIR OR REPLACEMENT WARRANTY FOR AN ADDITIONAL FEE AS PUBLISHED ON ZERIGO'S WEBSITE OR AS OTHERWISE COMMUNICATED IN WRITING TO BUYER. ZERIGO'S DETERMINATION AS TO WHETHER A MANUFACTURING DEFECT EXISTS AND IS COVERED BY THIS LIMITED WARRANTY SHALL BE FINAL AND BINDING. IF THE FAILURE OF OPERATION IS DEEMED BY ZERIGO TO BE OUTSIDE OF WARRANTY COVERAGE, ZERIGO WILL CHARGE BUYER FOR REPAIR OR REPLACEMENT.
EXCEPT AS SET FORTH HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND ZERIGO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSED, OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR TREATMENT OUTCOME, WITH RESPECT TO SERVICES, EXCEPT TO THE EXTENT THAT APPLICABLE LAW PRECLUDES DISCLAIMER OF ANY SUCH IMPLIED WARRANTIES. ZERIGO HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND GUARANTIES TO THE FULLEST EXTENT NOT PROHIBITED BY ANY APPLICABLE LAW. WE MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR: (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES; (B) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES; (C) THE OPERATION OR COMPATIBILITY WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE; (D) WHETHER THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS; AND (E) THE DELETION OF, OR THE FAILURE TO STORE OR TRANSMIT, YOUR DATA AND OTHER COMMUNICATIONS MAINTAINED BY THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN
THE SERVICES DO NOT PROVIDE MEDICAL ADVICE. The
Services, and all content available therein, are for informational purposes
only. The content is not intended to be a substitute for professional medical
advice, diagnosis, or treatment. Always seek the advice of Your physician or
other qualified healthcare provider with any questions You may have regarding a
medical condition. Never disregard professional medical advice or delay in
seeking treatment because of content or anything You have read on or about the
If You think You may have a medical emergency, call Your doctor or 911 immediately. Zerigo does not endorse any specific physicians, opinions, or other information that may be mentioned on the Services. Zerigo is not a health or wellness provider and cannot recommend or refer You to any specific health or wellness provider. Reliance on any information provided by Zerigo or its employees is solely at Your own risk.
13. LIMITATION OF LIABILITY. YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE ON BEHALF OF YOURSELF, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY FOR WHOM YOU ARE ACTING THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ZERIGO, ITS AFFILIATES, AND THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, ATTORNEYS, PARTNERS, LICENSORS AND LICENSEES WILL NOT BE RESPONSIBLE OR LIABLE TO YOU, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY (WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY), UNDER ANY CIRCUMSTANCES, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF ZERIGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ALSO AGREE THAT ZERIGO IS NOT RESPONSIBLE FOR ANY DAMAGES OR OTHER HARM YOU, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY SUFFERS AS A RESULT OF ANY ACTS, OMISSIONS AND/OR HEALTH CARE DECISIONS OF ANY PHYSICIAN OR OTHER HEALTH CARE PROVIDER. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO THE TRANSMISSION OF PERSONAL INFORMATION AND/OR HEALTH CARE INFORMATION ELECTRONICALLY OVER THE INTERNET AND STORED ON ANY COMPUTER, SERVER, OR OTHER ELECTRONIC MEMORY DEVICE, AND THAT ZERIGO IS NOT RESPONSIBLE FOR ANY LOSSES, CORRUPTION, DAMAGE, OR HARM TO YOU, YOUR INFORMATION, AND/OR YOUR CONFIDENTIALITY OR PRIVACY RESULTING FROM ANY UNAUTHORIZED DATA BREACH. YOU ACKNOWLEDGE ON BEHALF OF YOURSELF, YOUR MINOR CHILD AND/OR ANY PERSON OR ENTITY FOR WHOM YOU ARE ACTING THAT IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF ZERIGO TO YOU, YOUR MINOR CHILD, ANY PERSON FOR WHOM YOU ARE ACTING, AND ANY OTHER PERSON OR ENTITY FOR ANY CLAIM OR CLAIMS IN THE AGGREGATE EXCEED ONE THOUSAND DOLLARS ($1,000.00) OR THE AMOUNT PAID BY YOU TO ZERIGO FOR THE SERVICES (INCLUDING THE ZERIGO DEVICE), WHICHEVER IS GREATER.
14. TERMINATION. Zerigo reserves the right to terminate (i) Your access to the Services, and/or (ii) Your User Account and/or relationship with Zerigo, with or without cause in Zerigo's sole discretion. You will be given written e-mail notice of such termination; sent to the last known e-mail address that You have provided to Zerigo. Zerigo also reserves the right to refuse to provide any product or service to You without cause in Zerigo's sole discretion. You may terminate Your User Account and/or relationship with Zerigo in accordance with the procedures on the Services. Upon termination of (i) Your access to the Services, and/or (ii) Your User Account and/or relationship with Zerigo, You shall immediately cease accessing and using the Services. Upon such termination, all provisions of these Terms shall remain in full force and effect, excluding the provisions in which Zerigo has granted You any licenses or access to the Services, which shall thereafter be terminated.
15. ARBITRATION AND CLASS ACTION WAIVER
THIS SECTION INCLUDES AN ARBITRATION AGREEMENT AND AN AGREEMENT THAT ALL CLAIMS WILL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY (AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING). PLEASE READ IT CAREFULLY. YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT BY FOLLOWING THE OPT OUT PROCEDURE DESCRIBED BELOW.
15.1. Informal Process First You agree that in the event of any dispute between You and Zerigo, will first contact Zerigo and make a good faith, sustained effort to resolve the dispute before resorting to more formal means of resolution including, without limitation, any court action.
15.2. Arbitration Agreement . After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, "Claim") relating in any way to Your use of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to You and to Zerigo. However, this arbitration agreement does not (a) govern any Claim by Zerigo for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms or (b) bar You from making use of applicable small claims court procedures in appropriate cases.
Arbitration is more informal than a lawsuit filed in civil court. There is no judge or jury in an arbitration. Instead, the dispute is heard and resolved by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that You and Zerigo are each waiving the right to a trial by jury or to participate in a class action lawsuit. This arbitration provision will survive any termination of these Terms.
If You wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, You must send a letter requesting arbitration and describing Your claim to Zerigo at: 12651 High Bluff Drive, Suite 300, San Diego CA 92130. The arbitration will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures.
The number of arbitrators assigned to hear your concerns will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location. The arbitration will be conducted in the English language (interpreter available upon request), in San Diego, California. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administrative and arbitrator fees will be governed by the JAMS rules. If You are an individual, and have not accessed or used the Services on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous, and we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines that the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the "Class Action Waiver" section below.
Opt-out: If You are an individual, You may opt out of this arbitration agreement, within thirty (30) days of the first date You access or use the Services, by sending an email to: email@example.com. If you opt-out of these arbitration provisions, Zerigo also will not be bound by them
Class Action Waiver
Any Claim must be
brought in the respective party's individual capacity, and not as a plaintiff
or class member in any purported class, collective, representative, multiple
plaintiffs, or similar proceeding ("Class Action"). The parties expressly waive
any ability to maintain any Class Action in any forum. If the Claim is subject
to arbitration, the arbitrator will not have authority to combine or aggregate
similar claims, conduct any Class Action proceeding, nor make an award to any
person or entity not a party to the arbitration. Any claim that all or part of
this Class Action Waiver is unenforceable, unconscionable, void, or voidable
may be determined only by a court of competent jurisdiction and not by an
arbitrator. The parties understand that any right to litigate a claim, case, or
grievance in court, to have a judge or jury decide their case, or to be a party
to a class or representative action, is waived and that any claims must be
decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If, for any reason, a claim proceeds in court rather than in arbitration, You and Zerigo each waive any right to a jury trial.
16.1 Entire Agreement. These Terms constitute the complete agreement between You and Zerigo and supersede all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matter discussed herein.
16.2 Export Laws. You agree that You will not export or re-export, directly or indirectly the Products or Services and/or other information or materials provided by Zerigo hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export of such device, software, or data without first obtaining such license, approval or other applicable license exemption or exception. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a "terrorist supporting" country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Services,You represent and warrant that You are not located in any such country or included on any such list. You also agree that You will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply, at Your sole expense, with all applicable United States export laws and regulations.
16.3 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to Zerigo for which monetary damages would not be an adequate remedy and Zerigo shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without posting a bond, other security, or proof of damages.
16.4 Miscellaneous. These Terms will inure to the benefit of, and will be binding upon, each party's successors and assigns. These Terms and the licenses granted hereunder may be assigned by Zerigo, but may not be assigned by You, without the prior express written consent of Zerigo. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby, and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof, and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms will be deemed to constitute a designation of either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. The headings and captions contained herein will not be considered to be part of the Terms but are for convenience only. You and Zerigo agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms. The laws of the State of California, without regard to its conflicts of law rules, govern these Terms and Your use of the Services. Your use of the Services may also be subject to other local, state, national, or international laws.
16.5 California Residents. Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
16.5 Force Majeure. Zerigo shall not be liable for any alleged nonperformance of any alleged duty or obligation it may have either expressly or impliedly under these Terms (including any alleged implied covenant of good faith and fair dealing), in whole or in part, as a result of any event or series of events caused by or resulting from any of the following: (i) weather conditions or elements of nature; (ii) acts of God; (iii) acts of war, terrorism, insurrection, riots, rebellion and/or civil disorders; (iv) pandemics, epidemics, or quarantines; (v) embargoes; (vi) labor strikes; (vii) telecommunications, network, computer, server, storage device, hardware, software and/or Internet disruptions, failures or downtimes; (viii) unauthorized access to the Services and/or any telecommunications, network, computer, server, storage device, hardware, software and/or Internet systems operated by or on behalf of Zerigo; and/or (ix) any other event or occurrence beyond the reasonable control of Zerigo.
17. MODIFICATIONS. We may modify these Terms at any time in which case we will update the " Last Revised " date at the top of these Terms. If we make changes that are material, we may use reasonable efforts to attempt to notify You, including by email or placing a prominent notice on the first page of the Website and the Zerigo Mobile App. However, it is Your sole responsibility to review the Terms from time to time to view any such changes. Your continued access or use of the Services after the modifications have become effective will be deemed Your conclusive acceptance of the modified Terms. If You do not agree with the modifications to the Terms, then please do not continue to access or use the Services.
18. Contact Us. You may contact us regarding the Services or these Terms, including if You require information that is not available on the Services, by emailing us at firstname.lastname@example.org, calling us at +1 (877) 520-5697 or sending mail to us at the following address: