Last Update: March, 2016
In order to use the Zang API (the "Zang API" or "API"), access the information contained on the Zang website (the "Website") or make use of the various services provided by Zang (the "Services," and each a "Service"), you (hereinafter referred to as "You") must first read these terms of service (the "TOS”) and accept them. You may not use the Zang API, Website or Services if You do not accept this TOS and the Agreement (as defined below). You can only accept the terms of the Agreement by clicking to accept, or by agreeing to the terms of the Agreement in the user interface for any Zang Service, or by using the Zang API or Services. In the latter case, You understand and agree that we will treat Your use of the Services as acceptance of the terms from that point onwards. BY USING ZANG AND THE ZANG WEBSITE, YOU CONSENT TO THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE THE WEBSITE AND/OR SERVICES.
If You are accepting on behalf of Your employer or another entity, You represent and warrant that: (i) You have full legal authority to bind your employer, or the applicable entity, to these terms of service; (ii) You have read and understand this Agreement; and (iii) You agree, on behalf of the party that You represent, to this Agreement. If You do not have the legal authority to bind Your employer or the applicable entity, please do not put a check mark next to I AGREE and click on SUBMIT or use Zang’s Services.
We reserve the right to change the TOS from time to time without notice by posting updated terms on Zang’s Website. When we do, we will also revise the "last update" date of the TOS. Your continued use of any Service after such posting will constitute acceptance by You of such amendments.
Your online acceptance of this Agreement will have the same legal effect as if you were providing a handwritten signature of acceptance.
1. Grant of Rights to Use Services
1.1 So long as you are in compliance with the TOS, Zang hereby grants You a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license during the Term of this Agreement to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any new features provided by Zang that augment or enhance thecurrent Services shall also constitute “Services” and shall be subject to these terms and conditions. You may not, nor may you allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. You may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by Zang.
1.2 You may create a software application or website (an "Application") that interfaces with the Services. Provided that You comply with the terms of this Agreement and our policies and procedures, including the Acceptable Use Policy, You may use the Services to execute Applications owned or lawfully obtained by You.
1.3 You and any Applications that You may create, build or distribute may make network calls or requests to the Services, or may receive telephone calls via the Service, at any time that the Services are available, provided that those requests do not violate the terms of Zang’s Acceptable Use Policy or other terms of this Agreement.
1.4 You may not remove, obscure, or alter any notice of any Zang trademark, service mark or other intellectual property or proprietary right appearing on the Website or contained within the Services.
1.5 You acknowledge that we may change APIs for any Service or any feature of a Service from time to time, and that it is Your responsibility to ensure that calls or requests Your Applications make to or via our Service are compatible with then-current APIs for the Service. Zang will attempt to provide reasonable prior notice to You of any API changes so You can adjust Your Applications, but we are under no obligation to do so.
1.6 You are solely responsible for Your Applications, including any data, text, images or content contained therein. You are also personally responsible for all traffic originating from Your Applications that uses Your account credentials to access the Services. For that reason, You should protect Your authentication keys and security credentials. Actions taken using Your credentials shall be deemed to be actions taken by You, with all consequences including charges for Services, service termination, civil and criminal penalties.
1.7 We may make available to You, for Your installation, copying or use in connection with the Services, a variety of software, data and other content and printed and electronic documentation (the "Zang Properties"). Zang hereby grants to You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term of this Agreement only to install, copy and use the Zang Properties solely in connection with and as necessary for Your use of the Services in accordance with the terms and conditions of this Agreement.
(a) The Zang Properties may include, without limitation:
• The Zang Website;
• Zang APIs and Zang Markup Language; and
• Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and technology.
(b) Zang may make additional content or software available under another license agreement, such as an open source license. Any such content or software will be clearly marked with such a license indicating the usage rights available for that content or software. Such content or software may include:
• Developer tools, such as software development kits or sample code for use in connection with the APIs; and
• Articles and documentation for use in connection with the use and implementation of the APIs (collectively, "Documentation").
(c) Except as may be expressly authorized under this Agreement:
• You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Zang Properties.
• You may not, and may not attempt to, reverse engineer, disassemble, or decompile the Zang Properties or the Services or apply any other process or procedure to derive the source code of any software included in the Zang Properties.
1.8 Zang hereby grants to You a limited, non-exclusive, non-transferable, non-sub-licenseable, revocable license to display the trade names, trademarks, service marks, logos, domain names of Zang (each, a “Zang Mark”) for the purpose of promoting or advertising that You use the Services. In return You hereby grant Zang a limited, non-exclusive, non-transferable, non-sublicenseable license to display Your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that You use the Services. In using Zang Marks, You may not: (i) display a Zang Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Zang; (ii) use Zang’s Marks to disparage Zang or its products or services; or (iii) display a Zang Mark on a site that violates any applicable law or regulation. Notwithstanding the above, Zang may determine in its sole discretion that You may not use its marks in connection with one or more of Your Applications. Furthermore, we may modify any Zang Marks at any time, and upon notice, You shall use only the modified Zang Marks and not the old Zang Marks. Other than as specified in this Agreement, You may not use any Zang Mark unless You obtain our prior written consent. All uses of the Zang Trademarks and goodwill associated therewith shall inure to the benefit of Zang.
1.9 The rights granted by us in this Agreement with respect to the Zang Properties, the Zang Marks and the Services are nonexclusive, and we reserve the right to: (i) act as a developer of products or services similar to any of the products or services that You may develop in connection with the Zang Properties or the Services; and (ii) grant similar rights to third parties that as developers or systems integrators may offer products or services which compete with Your Application.
1.10 We will make commercially reasonable efforts to make data generated by Your use of the Service (such as audio recordings and call log entries) available via our API for at least six months from the date such data was generated. Notwithstanding the above and without limitation to Section 7, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur with respect to loss of data associated with Your account and data therein.
2. Term, Termination and Suspension
2.1 The term (“Term”) of this Agreement will commence once You accept this. The Agreement will remain in effect until terminated by You or by Zang in accordance with this Section 2.
2.2 You may terminate this Agreement as to any Service for any reason or no reason at all by closing Your account for that Service. You may terminate this Agreement in its entirety for any reason or no reason at all by closing all Your accounts for Services.
2.3 We may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You) for any reason at any time by providing You thirty (30) days' advance notice in accordance with the notice provisions set forth in Section 10 below. If Zang determines that providing advance notice would negatively impact Zang’s ability to provide Services to other customers, Zang may suspend Your right and license to use any or all Services with no notice.
2.4 We may also suspend Your right to use any Service or terminate this Agreement in its entirety (and, accordingly, Your right to use any Service) for cause:
2.4.1 Immediately upon our notice to You in accordance with the notice provisions set forth in Section 10 below if (i) You violate, or we have reason to believe that You have violated, any provision of the Acceptable Use Policy, (ii) there is an unusual spike or increase in Your use of a Service and there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible due to any legal or regulatory change; or (iv) subject to applicable law, upon Your liquidation, Your commencement of dissolution proceedings, the disposal of Your assets, the failure to continue Your business, an assignment for the benefit of Your creditors, or Your becoming the subject of a voluntary or involuntary bankruptcy or similar proceeding.
2.4.2 Immediately and without notice if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to us is or becomes invalid or charges are refused for such payment mechanism.
2.4.3 Five (5) days after our provision of notice to You in accordance with the notice provisions set forth in Section 10 below if You commit a material breach of any other provision of this Agreement and fail, to cure such breach within such 5-day period.
2.5 Effect of Suspension or Termination.
2.5.1 Upon our suspension of Your use of any Services for any reason permitted herein: (i) fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension; (ii) You remain liable for all fees, charges and any other obligations You have incurred up to and through the date of suspension with respect to the suspended Services; and (iii) all of Your rights with respect to the suspended Services shall be terminated during the period of the suspension.
2.5.2 Upon termination of this Agreement for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; and (ii) all of Your rights under this Agreement shall immediately terminate.
2.6 In the event this Agreement expires or is cancelled or terminated for any reason, Sections 6, 7, 8, 9, 10 and 11 and any applicable definitions will survive any such expiration, cancellation or termination.
2.7 Following the suspension or termination of Your right to use the Services by us or by You for any reason other than a termination for cause, You shall be entitled to take advantage of any post- termination assistance we may generally elect to make available with respect to the Services, such as data retrieval arrangements. We may also endeavor to provide You with unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to You, shall be conditioned upon Your acceptance of and compliance with any fees and terms we specify for such assistance.
3. Downtime and Service Suspensions
In addition to our right to terminate or suspend Services to You as described in Section 2 above, You acknowledge that: (i) Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, hacking, system failures or other interruptions; and (ii) we shall also be entitled, without incurring any liability to You, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to You or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that it is necessary or prudent to do so for legal or regulatory reasons ((a)-(c) collectively, "Service Suspensions"). Without limitation to Section 7, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide You notice of any Service Suspension in accordance with the notice provisions set forth in Section 10 below and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
4. Data Security and Backup
We strive to keep the information You provide to us secure, but cannot guarantee that we will be successful at doing so. Accordingly, without limitation to Section 7 below, You acknowledge that You bear sole responsibility for adequate backup of Your content, including all audio recordings associated with Your account. We strongly encourage You, where available and appropriate, to use encryption technology to protect Your content from unauthorized access and to routinely archive Your content. We will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your content from our servers or other equipment.
5.1 In its sole discretion, Zang shall determine whether You are eligible for a free trial subscription to its Services, which terms of the free trial are set forth here. Free trials are limited to one per person, and if we find that You have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations.
5.2 To the extent the Services or any portion thereof are made available for any fee, You agree to pay all applicable fees (including any minimum subscription fees) as set forth here. You agree to pay any third party or carrier costs, such as fees for porting Your existing telephone numbers into or out of the Services. We may increase or add new fees for any existing Service or Service feature by giving You 30 days' advance notice. All fees payable by You are exclusive of applicable taxes and duties, including, without limitation applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect any particular tax from You. You are responsible for any charges imposed on Zang by a carrier that are caused by Your or Your customers’ use of a Service and are related to government fees for telecommunications, including but not limited to, Universal Service Fund fees, if applicable.
5.3 We may specify the manner in which You will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. A/usesll amounts payable by You under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, You shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, You shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
5.4 Should You have any dispute as to fees associated with Your account, please contact us at firstname.lastname@example.org within 90 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to Your account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
6. Intellectual Property
6.1 Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Zang Properties; (iii) the Zang Marks; and (iv) any other technology and software that we provide or use to provide the Services and the Zang Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Zang Properties, the Zang Marks, or any other technology and software, except for the limited use and access rights described in this Agreement.
6.2 Zang may, at its discretion, offer certain Software Development Kits, tools, application samples, or documentation under an open source license. Any such products will be marked with copyright details, and those copyrights will apply to those and only those documents. Zang reserves all rights to any documents, tools, services, technologies and the like not subject to an open source license.
6.3 Other than the rights and interests expressly set forth in this Agreement and excluding any and all works derived from Zang Properties, You reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) content and data You may send to us or use as part of Your use of any Services ("Your Content"); and (ii) Your Applications.
6.4 In the event You elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the Zang Properties or the Zang Marks (collectively, "Feedback"), we shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. Furthermore, any other content or information You post or provide to Zang via comments, forums, emails and the like (collectively, “Communications”) shall be considered the property of Zang. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback and Communications.
6.5 During and after the Term of the Agreement, with respect to any of the Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
6.6 Zang respects the intellectual property of others, and we ask our users to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, or that Your intellectual property rights have been otherwise violated, You should notify Zang of Your infringement claim in accordance with the procedure set forth below.
Zang will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Zang’s Copyright Agent at email@example.com with the subject line: “DMCA Takedown Request”. You may also contact us by mail or facsimile at:
Attention: Copyright Agent
4655 Great America Parkway,
Santa Clara, CA 956084-1233 U
To be effective, the notification must be in writing and contain the following information:
• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• a description of the copyrighted work or other intellectual property that You claim has been infringed;
• a description of where the material that You claim is infringing is located on the Website, with enough detail that we may find it on the Website;
• Your address, telephone number, and email address;
• a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
• a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
7. Representations and Warranties; Disclaimers; Limitations of Liability
7.1 You represent and warrant that You will not use the Website (including our forums and comments sections), Services, Zang Properties, Zang Marks, Your Application or Your Content in a manner that violates the Acceptable Use Policy. Although Zang does not assume the duty or obligation to monitor any materials created, posted or uploaded by You or any third parties, Zang reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or uploaded by You or any third parties at any time without prior notice to ensure that they conform to any usage guidelines or policies (including our Acceptable Use Policy) relating to our Website or Services.
7.2 You also acknowledge and understand that the Services do NOT and will NOT allow You or your customers to access any 911 or similar emergency services. The Services are not intended to replace any primary phone service, such as a traditional landline or mobile phone, that may be used to contact emergency services.
7.3 You represent and warrant that You are responsible for any charges incurred by virtue of Your use of the Services, no matter whether Your Application acted in error. You also represent and warrant: (i) that You are solely responsible for the development, operation, and maintenance of Your Application and for Your Content, including without limitation, the accuracy, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Application and Your Content; (iii) that neither Your Application nor Your Content (a) violates, misappropriates or infringes any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, activity that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither Your Application nor Your Content contains any components capable of harming our network or Services; and (v) to the extent to which You use any of the Zang Marks, that You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Zang.
7.4 You further understand and agree that You will have use of any telephone number(s) that are provided as part of the Services only until the end of the term of Your Agreement with Zang or until Zang no longer provides You with the Services. You understand and agree that Zang is the customer of record for all telephone number(s) provided as part of the Services and, therefore, Zang owns or controls the telephone number(s) assigned to you and has certain rights with respect to porting of the number(s). (“Porting” is causing number(s) to be transferred, switched, or otherwise moved to any other service provider, such as a telephone carrier.) Zang reserves the right to refuse to port any telephone number(s) in its sole discretion.
7.4.1 If You "ported in" any telephone number(s) in connection with Your use of Services, or Zang assigned You one or more toll-free telephone numbers, or You are entitled to "port out" a telephone number under non-U.S. law, or Zang has agreed to port out any telephone number(s), You may port out such number(s) only if You satisfy the following requirements: (1) You provide written notice to Zang of Your intent to port out such number(s) no later than thirty (30) days after providing Zang notice of Your intent to terminate this Agreement (the "Porting Notice Period"); (2) Your new telephone carrier provides Zang's telephone carrier a duly executed porting request prior to the expiration of the Porting Notice Period; (3) You have paid Zang for all Services provided to You prior to the date You provide Zang notice of Your intent to terminate this Agreement; and (4) You have paid Zang any administrative fees associated with processing the port. You hereby authorize Zang to charge Your account in the applicable amount for the administrative fees in subsection (4) above or to otherwise arrange to make this payment to Zang within the Porting Notice Period. The porting process can be lengthy; if You would like to maintain Your account with the company during the porting process, You must maintain Your account in an active status and not terminate Your account until the porting out is complete. Regardless of when the port out is complete, You will continue to be responsible to pay all applicable account fees with respect to the telephone numbers until You formally terminate this Agreement. If You fail to satisfy any of the foregoing requirements, Zang remains the customer of record over the number(s) and You are expressly prohibited from causing or attempting to cause such number(s) to be transferred to any other service provider, telephone carrier or any other person or entity. Zang also retains the right to reclaim the number(s) from You after the number(s) are ported out in contravention with these requirements and authorize Zang to charge Your account or take any other measures to collect the costs associated with causing the number(s) to be returned to Zang. You understand and agree that even if You satisfy the requirements set forth in this section, technical or procedural difficulties or interruptions may occur when attempting to port out these numbers and such difficulties or interruptions may prevent Your new carrier from porting the numbers. Zang is not responsible for such technical or procedural difficulties or interruptions.
7.4.2 You understand and agree that following the termination of this Agreement for any reason, your number(s) may be re-assigned to another customer. You agree that Zang will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and You hereby waive any claims with respect to any such re-assignment, whether based on contractual, tort or other grounds, even if Zang has been advised of the possibility of damages.
7.4.3 You understand and agree that Zang may need to change the telephone number(s) assigned to You. You agree that Zang will not be liable for damages (including consequential or special damages) arising out of any such change in the telephone number(s) assigned to You and You hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if Zang has been advised of the possibility of damages.
7.6 You represent and warrant that without Zang’s express written consent You will not use, and will not authorize any third party to use, any Public Software (as defined below) in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any Zang Properties or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. You represent and warrant that all Feedback and Communications contributed by or through You (i) are legally distributable by You, either because You own the copyright or because You have fully complied with any copyright terms associated with the software or content, (ii) contain no third party software or any software that may be considered Public Software, and (iii) do not violate, misappropriate or infringe any intellectual property rights of any third party. "Public Software" means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux or Asterisk) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU's General Public License (GPL), Lesser/ Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.
7.7 You represent and warrant that: (i) the information You provide in connection with Your registration for the Services is accurate and complete; (ii) You are duly authorized to do business in the jurisdiction where You operate; and (iii) You are an authorized representative of Your entity duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your account.
7.8 In addition to the foregoing, we specifically disclaim all liability for, and You agree that You shall be solely responsible for:
7.8.1 the development, operation, and maintenance of Your Application, all related equipment, and all materials that appear on or within Your Application and Your Content;
7.8.2 the accuracy and appropriateness of any materials posted on or within Your Application or Your Content (including, among other things, any product-related materials);
7.8.3 ensuring that any materials posted on Your site or within Your Application do not violate our Acceptable Use Policy, are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
7.8.5 any of Your users' or customers' claims relating to Your Application or Your Content or any Services utilized in connection with Your Application.
7.9 THE ZANG PROPERTIES, THE ZANG MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICES OR WEBSITE WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE OR WEBSITE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7.10 NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE ZANG PROPERTIES, THE ZANG MARKS, THE SERVICES OR PROMOTIONAL CREDITS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
7.11 Third Party Materials: Certain content, products, and services available via the Zang website (or links contained therein) may include materials, software, plug-ins, applications and other resources from third parties and access to third party websites (collectively "Third Party Materials"). You acknowledge and agree that Zang is not responsible for examining or evaluating the content or accuracy of any such Third Party Materials and that Zang does not warrant or endorse and does not assume (and will not have) any liability or responsibility for any Third Party Materials or any damage or loss resulting therefrom. The availability of Third Party Materials is provided solely as a convenience to you. You agree that you must evaluate, and bear all risks associated with, the use of any Third Party Materials, including any reliance on the accuracy, completeness, or usefulness thereof. Please also remember that all use of the Zang website and service is subject to the Zang Terms of Service.
8.1 You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of (i) Your use of the Services, Zang Properties or Zang Marks in a manner that is not authorized by this Agreement or is in violation of the applicable restrictions, the Acceptable Use Policy, or applicable law; (ii) Your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights or the use, development, design, manufacture, production, advertising, promotion, or marketing of Your Application or Your Content; (iii) Your violation of any term or condition of this Agreement, including the Acceptable Use Policy or any applicable additional policies; or (iv) You or Your employees' or agent's negligence or willful misconduct.
8.2 We agree to promptly notify You of any claim subject to indemnification hereunder; provided that our failure to promptly notify You shall not affect Your obligations hereunder except to the extent that our failure to promptly notify You delays or prejudices Your ability to defend the claim. At our option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to our written consent) and to settle such claim as You deem appropriate, provided that You shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
9.1 We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Zang’s or any third party's intellectual property rights and/or proprietary rights. You acknowledge that our rights in the Zang Services, Zang Properties and the Zang Marks are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
9.2 By using the Services, You agree that the laws of the State of New Jersey, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between You and us.
9.3 Arbitration. YOU AND ZANG BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION. UNLESS YOU AND ZANG AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN NEWARK, NEW JERSEY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND THE PROCEDURES MAY BE DIFFERENT, BUT AN ARBITRATOR MUST HONOR THE TERMS IN THIS AGREEMENT AND CAN AWARD YOU THE SAME INDIVIDUAL DAMAGES AND RELIEF TO YOU AS A COURT COULD.
9.3.1 THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY SERVICES YOU RECEIVE FROM US WILL BE RESOLVED BY ONE NEUTRAL ARBITRATOR UNDER THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). YOU CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM THE AAA (WWW.ADR.ORG). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU.
9.3.2 THE LAW ALLOWS AN ARBITRATOR TO AWARD ATTORNEYS' FEES AND COSTS TO THE PREVAILING PARTY, AND WE AND YOU HEREBY AGREE THAT THE ARBITRATOR OF ANY DISPUTE BETWEEN US MAY DO SO.
9.3.3 THIS AGREEMENT DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF A SINGLE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT.
9.3.4 IF EITHER YOU OR ZANG INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO ZANG SHOULD BE SENT AS REQUIRED BY THIS AGREEMENT. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF YOU AND ZANG ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION.
9.3.5 IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION (3) CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
9.3.6 IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND ZANG AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND ZANG UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT. YOU AND ZANG ALSO AGREE THAT ANY DISPUTE HEREUNDER SHALL BE ADJUDICATED IN ANY STATE OR FEDERAL COURT IN NEW JERSEY, AND YOU CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN SUCH COURTS.
10.1 Notices made by us under this Agreement for You or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via a notification message displayed on Your account page or sent to the email address provided to us in Your registration for the Services or to any updated email address You have provided to us in accordance with our standard account information update procedures. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not You actually receive the email.
10.2 For notices made by You to us under this Agreement and for questions regarding this Agreement or the Services, You may contact Zang as follows by US Postal Mail at Zang Inc, 4655 Great America Parkway, Santa Clara, CA 956084-1233 U, or by contacting us at firstname.lastname@example.org
11. Miscellaneous Provisions
11.1 Responsibility. If You authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, You shall be deemed to have taken the action Yourself.
11.2 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
11.3 Message Routing. You may not use phone numbers provided by Zang ("Zang Phone Numbers") to route SMS messages over any other provider's network. All SMS messages sent and received for a Zang Phone Number must be sent and received via Zang's Services.
11.4 Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
11.5 Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns.
11.7 No Endorsement. You understand and acknowledge that we are not certifying or endorsing, and have no obligation to certify or endorse, any of Your Applications or Your Content.
11.8 International Sale of Goods; Export and Import Control Laws and Regulations. You and Zang hereby agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act (UCITA). Services, Content, and product derived or obtained from Zang’s Services may be subject to the U.S. export control laws and the export or import laws of other countries. You agree to comply strictly with all such laws and, in particular, shall: (a) obtain any export, reexport, or import authorizations required by U.S. or your local laws; (b) not use Services, Content, or direct product from Zang’s Services to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide Services, Content, or direct product from Zang’s Services to prohibited countries and entities identified in the U.S. export regulations
11.9 No Agency. Nothing in this Agreement shall be construed as creating a partnership, contract of employment, agency, joint venture or franchise relationship between Zang with you.
11.10 No Third Party Beneficiary. You acknowledge and agree that, except as otherwise expressly provided in the Terms, there shall be no third party beneficiary to this agreement.
© Zang Inc. 2016. All Rights Reserved.
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