These Terms of Service ("Terms") constitute a legally binding
agreement between you ("Customer," "you," or "your") and Zoah Inc.
("Zoah," "we," "us," or "our") governing your access to and use of
the Zoah platform, including our website at zoah.com,
applications, and related services (collectively, the "Service").
By accessing or using the Service, you agree to be bound by these
Terms. If you are using the Service on behalf of an organization,
you represent and warrant that you have the authority to bind that
organization to these Terms.
PLEASE READ THESE TERMS CAREFULLY. THEY CONTAIN AN ARBITRATION
AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS.
1. Definitions
"Account" means your registered account to access
the Service.
"Authorized Users" means individuals authorized
by you to access the Service under your Account, including
Collaborators and Viewers.
"Beta Features" means any feature, functionality,
or version of the Service that is designated as alpha, beta,
preview, early access, experimental, or similar.
"Collaborators" means Authorized Users with full
editing and design capabilities within the Service.
"Viewers" means Authorized Users with read-only
access who may view and comment on projects but cannot edit.
"Materials" means all designs, code, data, text,
images, and other materials you upload, create, or store using the
Service.
"Documentation" means the user guides, help
articles, and other documentation we make available for the
Service.
"Generated Code" means the code automatically
generated by the Service from your designs.
"AI Features" means artificial intelligence and
machine learning powered features of the Service, including code
generation, design suggestions, and automated workflows.
"High Risk Activities" means activities where the
use or failure of the Service could reasonably be expected to lead
to death, bodily injury, or environmental damage, including
medical life-support systems, autonomous vehicle technology,
nuclear facilities operation, emergency response services, air
traffic control, or weapons systems.
"Marketplace" means the Zoah marketplace where
users may buy and sell design components, templates, and packages.
"Prohibited Data" means (a) protected health
information regulated by HIPAA; (b) credit, debit, or bank account
numbers; (c) social security numbers, driver's license numbers, or
other government identification numbers; (d) special categories of
data as defined by GDPR (racial or ethnic origin, political
opinions, religious beliefs, genetic or biometric data, health
data, sex life, or sexual orientation); or (e) other sensitive
personal information protected by applicable data protection laws.
"Subscription" means your selected pricing plan
and associated features and limits.
"Third-Party Services" means services,
applications, or integrations provided by third parties that may
integrate with the Service.
"Usage Data" means data and information about the
provision, use, and performance of the Service based on your or
your Authorized Users' use of the Service.
2. Access and Use
2.1 Grant of Rights. Subject to your compliance
with these Terms and payment of applicable Fees, we grant you a
limited, non-exclusive, non-transferable, non-sublicensable right
to access and use the Service during your Subscription term for
your internal business purposes in accordance with these Terms and
the Documentation.
2.2 Eligibility. You must be at least 13 years
old to use the Service. By using the Service, you represent and
warrant that you meet this eligibility requirement.
2.3 Account Registration. To access the Service,
you must create an Account and provide accurate, complete
information. You are responsible for maintaining the
confidentiality of your Account credentials and for all activities
under your Account. You will promptly notify Zoah if you suspect
or become aware of any unauthorized access to or use of your
Account.
2.4 Authorized Users. You may designate
Authorized Users to access the Service under your Account.
Authorized Users are classified as either Collaborators (with full
editing capabilities) or Viewers (with read-only and commenting
capabilities). You are responsible for your Authorized Users'
compliance with these Terms and their use of the Service. You will
pay the applicable fees for each Collaborator and Viewer as
specified in your Subscription.
2.5 Technical Support. During your Subscription
term, Zoah will provide technical support for the Service as
described on our website or in your Subscription. Support
availability and response times may vary by Subscription tier.
2.6 Use Restrictions. You agree not to:
-
Copy, modify, or create derivative works of the Service except
as expressly permitted
-
Reverse engineer, decompile, or attempt to discover any source
code or underlying algorithms of the Service (except to the
extent applicable law prohibits this restriction)
-
Provide, sell, transfer, sublicense, lend, distribute, rent, or
otherwise allow others to access or use the Service
-
Use the Service to transmit malware, viruses, or other harmful
code
-
Interfere with or disrupt the Service, or conduct security or
vulnerability tests on the Service without prior written
authorization
- Violate any applicable laws or regulations
-
Infringe any third-party intellectual property or other rights
-
Use the Service to generate, store, or transmit any unlawful,
defamatory, or harassing content
-
Attempt to gain unauthorized access to any part of the Service,
other accounts, or systems or networks connected to the Service
-
Use the Service in any manner that could damage, disable, or
impair the Service or cause performance degradation
-
Remove, alter, or obscure any proprietary notices in the Service
-
Share Account credentials or allow unauthorized access to your
Account
-
Use AI Features to generate content that infringes third-party
intellectual property rights
-
Circumvent or attempt to circumvent usage limits, rate limits,
or other technical restrictions
- Use the Service for any High Risk Activities
-
Submit Prohibited Data to the Service unless expressly
authorized in writing by Zoah
2.7 Suspension. Zoah may temporarily suspend your
access to the Service, with or without notice, if: (a) you have an
outstanding, undisputed balance on your Account for more than
thirty (30) days; (b) you breach Section 2.6 (Use Restrictions);
(c) you use the Service in violation of these Terms or in a way
that materially and negatively impacts the Service or other users;
or (d) required by law or to protect the security of the Service.
Where practical, Zoah will attempt to notify you before suspending
your Account. Zoah will reinstate your access only after you
resolve the underlying issue to Zoah's reasonable satisfaction.
3. Materials and Generated Code
3.1 Materials Ownership. You retain all right,
title, and interest in and to your Materials. Zoah does not claim
ownership of your Materials.
3.2 License to Zoah. You grant Zoah a worldwide,
non-exclusive, royalty-free license to use, copy, store, transmit,
display, modify, and process your Materials solely to provide,
maintain, and improve the Service and as otherwise described in
our Privacy Policy. This license is limited to the purposes of
providing the Service and does not grant Zoah any ownership rights
in your Materials. You are responsible for the accuracy and
content of your Materials.
3.3 Generated Code Ownership. Subject to your
compliance with these Terms, all Generated Code produced by the
Service from your Materials is owned by you. Zoah hereby assigns
to you all right, title, and interest in and to Generated Code,
subject to any third-party licenses that may apply to libraries,
frameworks, or dependencies included in the Generated Code.
3.4 AI Training and Content Usage. We may use
Materials to provide, maintain, and improve the Service and to
develop other products and services, including training our AI
models, unless you opt out of training through your Account
settings. For more information about how we handle your data,
please see our Privacy Policy at
zoah.com/privacy.
3.5 Feedback and Usage Data. If you provide
suggestions, ideas, or other feedback about the Service
("Feedback"), you provide such Feedback "AS IS" and grant Zoah a
perpetual, irrevocable, worldwide, royalty-free license to use,
modify, and incorporate such Feedback into the Service without
restriction or obligation. In addition, Zoah may collect and
analyze Usage Data and may freely use Usage Data to maintain,
improve, enhance, and promote Zoah's products and services.
However, Zoah may only disclose Usage Data to others if it is
aggregated and does not identify you or your Authorized Users.
3.6 Content Responsibility. You are solely
responsible for your Materials and the consequences of uploading,
posting, or otherwise making it available through the Service. You
represent and warrant that you have all necessary rights to your
Materials and that your Materials does not violate any applicable
laws or infringe any third-party rights.
3.7 Content Removal. Zoah reserves the right to
remove or disable access to any Materials that violates these
Terms or applicable law, without prior notice.
4. Subscription Plans and Features
4.1 Subscription Tiers. The Service is offered
through various Subscription tiers, each with different features,
usage limits, and pricing. The specific features, limitations, and
pricing for each tier are described on our website at
zoah.com/pricing and may be updated from time to time.
4.2 Free Tier Limitations. The free tier provides
limited access to the Service with restrictions on the number of
projects, team size, and available features. Free tier users may
not have access to AI Features or certain advanced functionality.
Zoah reserves the right to modify or discontinue the free tier at
any time.
4.3 Paid Subscription Features. Paid
Subscriptions include expanded features such as unlimited
projects, increased team sizes, AI Features, advanced
collaboration tools, and enterprise features like SSO
authentication. Higher-priced tiers generally include more
features, higher usage limits, and additional capabilities than
lower-priced tiers. The specific features available depend on your
selected Subscription.
4.4 Viewer Access. Certain Subscription tiers may
include the ability to add Viewers to your Account. Viewers have
read-only access and may view and comment on projects but cannot
edit designs or generate code. Viewer access is subject to
applicable per-user fees as specified in your Subscription.
4.5 Beta Features. Zoah may offer access to Beta
Features from time to time. Beta Features are provided "AS IS"
without any warranty of any kind. Zoah may modify or discontinue
Beta Features at any time without notice or liability. The
warranties in Section 11 (Warranties and Disclaimers) do not apply
to Beta Features. You acknowledge that Beta Features may be
experimental in nature, may contain bugs or errors, and may not
function as intended.
5. Fees and Payment
5.1 Subscription Fees. You agree to pay all
applicable fees for your Subscription as described on our pricing
page. All fees are in U.S. Dollars unless otherwise specified.
Subscription fees are charged in advance on a monthly or annual
basis, depending on your selected billing cycle. Except as
expressly provided in these Terms, all fees are non-refundable.
5.2 Per-Seat Fees. For Subscriptions with
multiple Authorized Users, you will be charged per-seat fees for
each Collaborator and Viewer beyond those included in your base
Subscription. Per-seat fees are charged at the rates specified for
your Subscription and are prorated for partial billing periods.
5.3 AI Usage Fees. Your Subscription includes a
monthly AI allowance for each Collaborator, stated as an amount of
usage value rather than a number of requests. We measure AI usage
by what each request costs to serve, so requests differ in the
amount of allowance they use. Usage beyond your included allowance
requires prepaid AI credits.
5.4 Automatic Renewal. Subscriptions
automatically renew at the end of each billing period unless you
cancel before the renewal date. By subscribing, you authorize us
to charge your payment method for the renewal term.
5.5 Price Changes. We may change our fees at any
time. For existing Subscriptions, fee changes will take effect at
the start of your next billing cycle following at least thirty
(30) days' notice. Your continued use of the Service after a price
change constitutes acceptance of the new pricing.
5.6 Taxes. All fees are exclusive of applicable
taxes, levies, or duties, including sales, use, VAT, GST, or
withholding taxes. You are responsible for paying all such taxes
that Zoah itemizes and includes in an invoice, except for taxes
based on Zoah's net income.
5.7 Payment Processing. Payments are processed
through our third-party payment processor (currently Stripe). By
providing payment information, you authorize us and our payment
processor to automatically charge your payment method for all fees
due according to your billing cycle. Zoah will make a copy of your
billing history available to you through your Account.
5.8 Payment Disputes. If you have a good-faith
disagreement about fees charged or invoiced, you must notify Zoah
about the dispute before payment is due or within thirty (30) days
of an automatic payment, and you must pay all undisputed amounts
on time. The parties will work together in good faith to resolve
the dispute within fifteen (15) days. If no resolution is agreed,
each party may pursue any remedies available under these Terms or
applicable law.
5.9 Failed Payments. If any payment fails, we may
suspend or terminate your access to the Service until payment is
received. We may also charge interest on overdue amounts at the
rate of 1.5% per month or the maximum rate permitted by law,
whichever is lower.
5.10 Refunds. Except as required by law or as
otherwise stated in these Terms, all fees are non-refundable. No
refunds or credits will be provided for partial months of service
or unused AI allowance.
6. Marketplace
6.1 Marketplace Overview. The Marketplace allows
users to buy and sell design components, templates, packages, and
other digital assets ("Marketplace Items"). Participation in the
Marketplace is subject to these Terms and any additional
Marketplace guidelines we may publish.
6.2 Selling on the Marketplace. If you choose to
sell Marketplace Items, you must have all necessary rights to the
content you sell. You grant purchasers the license rights
specified in the applicable listing. You are solely responsible
for the accuracy of your listings and the quality of your
Marketplace Items.
6.3 Marketplace Fees. Zoah charges a commission
on Marketplace sales, which may vary by Subscription, plus
applicable payment processing fees. The current commission rates
are specified on our pricing page. We reserve the right to modify
commission rates with at least thirty (30) days' notice.
6.4 Marketplace Purchases. When you purchase
Marketplace Items, you receive the license rights specified in the
listing. All Marketplace sales are final unless otherwise stated
in the listing or required by applicable law. Zoah does not
guarantee the quality, accuracy, or fitness for purpose of
Marketplace Items.
6.5 No Endorsement. Zoah does not endorse,
warrant, or guarantee any Marketplace Items or sellers.
Transactions are between buyers and sellers, and Zoah is not a
party to such transactions except as the platform provider and fee
collector.
7. Intellectual Property
7.1 Zoah Intellectual Property. Except for the
limited rights expressly granted in these Terms, Zoah retains all
right, title, and interest in and to the Service, including all
software, algorithms, user interfaces, designs, trademarks, and
other intellectual property, whether developed before or after the
effective date of these Terms. No rights are granted to you except
as expressly set forth in these Terms.
7.2 Logo Rights. Zoah may identify you as a
customer and use your name and logo in marketing materials and on
our website to identify you as a user of Zoah's products and
services. You may revoke this permission at any time by sending
written notice to
legal@zoah.com.
8. Third-Party Services
8.1 Integration with Third-Party Services. The
Service may integrate with or allow you to connect to Third-Party
Services. Your use of Third-Party Services is subject to the terms
and privacy policies of those services. Zoah is not responsible
for Third-Party Services and does not endorse them.
8.2 Third-Party AI Providers. AI Features may be
powered by third-party AI providers. When you use AI Features,
your inputs may be processed by these providers subject to their
terms and privacy policies. We take steps to protect your data in
these interactions, as described in our Privacy Policy. Due to the
nature of artificial intelligence and machine learning,
information generated by AI Features may be inaccurate or
incorrect. AI Features are not a substitute for human oversight
and judgment.
9. Data Protection
9.1 Privacy Policy. Our collection, use, and
disclosure of personal information is governed by our Privacy
Policy at zoah.com/privacy,
which is incorporated into these Terms by reference. By using the
Service, you consent to our data practices as described in the
Privacy Policy.
9.2 Data Processing Agreement. To the extent that
Zoah processes personal data on your behalf that is governed by
GDPR or similar data protection laws, the terms of our Data
Processing Agreement (available upon request) will apply in
addition to these Terms. If the parties have entered into a Data
Processing Agreement, its terms will control in the event of any
conflict with these Terms regarding the processing of personal
data.
9.3 Prohibited Data. You will not submit
Prohibited Data to the Service unless expressly authorized in
writing by Zoah. If you require the ability to process Prohibited
Data, please contact us to discuss appropriate safeguards and
agreements.
9.4 Security Measures. We implement reasonable
technical and organizational measures to protect Materials and
personal data. However, no method of transmission over the
Internet or electronic storage is completely secure, and we cannot
guarantee absolute security.
9.5 Data Retrieval. Upon termination of your
Subscription, you will have thirty (30) days to export your
Customer Content. Upon your request made within this period, Zoah
will delete your Materials within sixty (60) days. After the
retrieval period, we may delete your Materials in accordance with
our data retention policies.
10. Confidentiality
10.1 Confidential Information. "Confidential
Information" means any non-public information disclosed by one
party ("Discloser") to the other party ("Recipient") that is
designated as confidential or that reasonably should be understood
to be confidential given the nature of the information and
circumstances of disclosure. Your Confidential Information
includes non-public Customer Content. Zoah's Confidential
Information includes non-public information about the Service.
10.2 Protection Obligations. Except as otherwise
authorized in these Terms or as needed to fulfill its obligations
or exercise its rights under these Terms, Recipient will not: (a)
use Discloser's Confidential Information; or (b) disclose
Discloser's Confidential Information to anyone else. Recipient
will protect Discloser's Confidential Information using at least
the same degree of care it uses to protect its own similar
confidential information, but no less than a reasonable standard
of care.
10.3 Permitted Disclosures. Recipient may
disclose Discloser's Confidential Information to employees,
advisors, contractors, and representatives who have a need to know
the Confidential Information, provided they are bound by
confidentiality obligations at least as protective as those in
this Section 10 and Recipient remains responsible for their
compliance.
10.4 Required Disclosures. Recipient may disclose
Discloser's Confidential Information to the extent required by
applicable law, provided that, unless prohibited by law, Recipient
gives Discloser reasonable advance notice of the required
disclosure and reasonably cooperates, at Discloser's expense, with
Discloser's efforts to obtain confidential treatment for the
Confidential Information.
10.5 Exclusions. Confidential Information does
not include information that: (a) Recipient knew without any
obligation of confidentiality before disclosure by Discloser; (b)
is or becomes publicly known and generally available through no
fault of Recipient; (c) Recipient receives under no obligation of
confidentiality from someone else who is authorized to make the
disclosure; or (d) Recipient independently developed without use
of or reference to Discloser's Confidential Information.
11. Warranties and Disclaimers
11.1 Mutual Warranties. Each party represents and
warrants to the other that: (a) it has the legal power and
authority to enter into these Terms; (b) it is duly organized,
validly existing, and in good standing under the laws of its
jurisdiction; and (c) it will comply with all applicable laws in
performing its obligations or exercising its rights under these
Terms.
11.2 Customer Warranties. You represent and
warrant that you, all Authorized Users, and anyone submitting
Materials each have and will continue to have all rights necessary
to submit Materials to the Service and to allow the use of
Materials as described in these Terms.
11.3 Service Warranty. Zoah warrants that it will
not materially reduce the general functionality of the Service
during your Subscription term. If Zoah breaches this warranty, you
must give Zoah notice with enough detail to understand or
replicate the issue within forty-five (45) days of discovering the
issue. Within forty-five (45) days of receiving sufficient
details, Zoah will attempt to restore the general functionality of
the Service. If Zoah cannot resolve the issue, you may terminate
your Subscription and Zoah will pay you a prorated refund of
prepaid fees for the remainder of the Subscription term. Zoah's
restoration obligation and your termination right are your sole
and exclusive remedies for breach of this warranty.
11.4 Disclaimer. EXCEPT FOR THE WARRANTIES IN
THIS SECTION 11, THE SERVICE IS PROVIDED "AS IS" AND "AS
AVAILABLE." OPACITY AND CUSTOMER EACH DISCLAIM ALL OTHER
WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
11.5 Additional Disclaimers. Zoah makes no
guarantees that the Service will always be safe, secure, or
error-free, or that it will function without disruptions, delays,
or imperfections. The warranties in this Section 11 do not apply
to: (a) any misuse or unauthorized modification of the Service;
(b) use of the Service in combination with items not provided by
Zoah; (c) Beta Features; or (d) any product or service provided by
anyone other than Zoah.
11.6 AI Features Disclaimer. AI Features are
provided for assistance purposes only. Generated Code and other AI
outputs may contain errors, may not be fit for any particular
purpose, and should be reviewed before use. You are solely
responsible for any use of AI outputs. AI Features are not a
substitute for human oversight and professional judgment.
12. Limitation of Liability
12.1 Exclusion of Indirect Damages. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO
THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR
PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR
GOODWILL, ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER BASED
ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF
STATUTORY DUTY, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
12.2 Liability Cap. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, EACH PARTY'S TOTAL CUMULATIVE LIABILITY FOR ALL
CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED
THE GREATER OF: (A) THE AMOUNTS PAID BY YOU TO OPACITY IN THE
TWELVE (12) MONTHS PRECEDING THE CLAIM; OR (B) ONE HUNDRED DOLLARS
($100).
12.3 Exceptions. The exclusion of indirect
damages in Section 12.1 does not apply to a breach of Section 10
(Confidentiality). Nothing in these Terms will limit, exclude, or
restrict a party's liability to the extent prohibited by
applicable law.
12.4 Essential Basis. The limitations of
liability in this Section 12 reflect the allocation of risk
between the parties and are an essential basis of the bargain
between the parties. The Service would not be provided without
these limitations.
13. Indemnification
13.1 Your Indemnification. You agree to
indemnify, defend, and hold harmless Zoah and its officers,
directors, employees, and agents from and against any third-party
claims, damages, losses, liabilities, costs, and expenses
(including reasonable attorneys' fees) arising out of or related
to: (a) your Materials; (b) your violation of these Terms; (c)
your violation of any third-party rights; or (d) your Authorized
Users' use of the Service.
13.2 Zoah Indemnification. Zoah will indemnify,
defend, and hold you harmless from any third-party claim that the
Service (excluding Materials, Third-Party Services, and
Marketplace Items) infringes any third-party intellectual property
rights, and all out-of-pocket damages, awards, settlements, costs,
and expenses (including reasonable attorneys' fees) that arise
from such claim.
13.3 Indemnification Procedures. The indemnifying
party's obligations are contingent upon the protected party: (a)
promptly notifying the indemnifying party of each claim for which
it seeks protection; (b) providing reasonable assistance to the
indemnifying party at the indemnifying party's expense; and (c)
giving the indemnifying party sole control over the defense and
settlement of each claim. The protected party may participate in
the defense with its own attorneys at its own expense. The
indemnifying party may not agree to any settlement that contains
an admission of fault or otherwise materially and adversely
impacts the protected party without the protected party's prior
written consent.
13.4 Infringement Response. If required by
settlement or court order, or if deemed reasonably necessary in
response to an infringement claim, Zoah may: (a) obtain the right
for you to continue using the Service; (b) replace or modify the
affected component of the Service without materially reducing its
general functionality; or (c) if neither (a) nor (b) are
commercially reasonable, terminate your Subscription and issue a
prorated refund of prepaid fees for the remainder of the
Subscription term.
13.5 Indemnification Exclusions. Zoah's
indemnification obligations will not apply to claims that result
from: (a) modifications to the Service that were not authorized by
Zoah or made in compliance with your instructions; (b)
unauthorized use of the Service, including use in violation of
these Terms; (c) use of the Service in combination with items not
provided by Zoah; or (d) use of an old version of the Service
where a newer release would avoid the claim.
13.6 Exclusive Remedy. This Section 13
(Indemnification), together with any termination rights, describes
each party's exclusive remedy and the other party's entire
liability for any covered claim.
14. Term and Termination
14.1 Term. These Terms commence when you first
access or use the Service and continue until terminated in
accordance with this Section.
14.2 Termination by You. You may terminate your
Subscription at any time through your Account settings.
Termination will be effective at the end of your current billing
period. You will not receive a refund for any prepaid fees for the
remainder of your billing period.
14.3 Termination by Zoah. Zoah may terminate or
suspend your access to the Service immediately without notice if:
(a) you fail to cure a material breach of these Terms within
thirty (30) days after notice; (b) you materially breach these
Terms in a manner that cannot be cured; (c) you fail to pay fees
when due; (d) we reasonably believe your use poses a security risk
or may harm other users; (e) you become the subject of bankruptcy,
insolvency, or similar proceedings that continue for more than
sixty (60) days; or (f) required by law. We may also terminate
your Subscription for convenience with thirty (30) days' notice.
14.4 Force Majeure Termination. Either party may
terminate the affected Subscription upon notice if a Force Majeure
Event (as defined in Section 16.6) prevents the Service from
materially operating for thirty (30) or more consecutive days. In
such case, Zoah will pay you a prorated refund of any prepaid fees
for the remainder of the Subscription term.
14.5 Effect of Termination. Upon termination: (a)
your right to access the Service immediately ceases (except for
the 30-day data retrieval period); (b) you must pay any
outstanding fees accrued before termination; (c) each party will
return or destroy the other party's Confidential Information in
its possession or control; and (d) Zoah may delete your Materials
after the data retrieval period. Sections that by their nature
should survive termination will survive, including Sections on
definitions, restrictions, intellectual property, feedback and
usage data, payment for accrued fees, confidentiality, limitation
of liability, indemnification, and general provisions.
15. Dispute Resolution
15.1 Informal Resolution. Before initiating any
legal proceeding, you agree to first contact us at
legal@zoah.com to attempt to
resolve the dispute informally. We will attempt to resolve the
dispute within sixty (60) days of receiving your notice.
15.2 Binding Arbitration. If we cannot resolve
the dispute informally, you and Zoah agree to resolve any dispute,
claim, or controversy arising out of or relating to these Terms
through binding arbitration administered by the American
Arbitration Association ("AAA") under its Commercial Arbitration
Rules. The arbitration will be conducted in San Francisco,
California, unless we agree otherwise.
15.3 Class Action Waiver. YOU AND OPACITY AGREE
THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS
INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
15.4 Arbitration Opt-Out. You may opt out of the
arbitration agreement by sending written notice to
legal@zoah.com within thirty
(30) days of first accepting these Terms. Your notice must include
your name, address, and a statement that you wish to opt out of
arbitration.
15.5 Exceptions. Notwithstanding the above,
either party may seek injunctive or other equitable relief in any
court of competent jurisdiction to protect its intellectual
property rights or Confidential Information without the need to
post a bond. Claims within the jurisdiction of small claims court
may also be brought in such court.
16. General Provisions
16.1 Governing Law. These Terms are governed by
the laws of the State of California without regard to its conflict
of laws principles. For matters not subject to arbitration, the
courts in San Francisco, California shall have exclusive
jurisdiction. The United Nations Convention for the International
Sale of Goods and the Uniform Computer Information Transaction Act
do not apply to these Terms.
16.2 Modifications. We may modify these Terms at
any time by posting the revised Terms on our website. Material
changes will be effective thirty (30) days after posting or upon
notice to you, whichever is earlier. Your continued use of the
Service after changes become effective constitutes acceptance of
the modified Terms.
16.3 Assignment. You may not assign or transfer
these Terms without Zoah's prior written consent. However, either
party may assign these Terms upon notice if the assigning party
undergoes a merger, change of control, reorganization, or sale of
all or substantially all its equity, business, or assets to which
these Terms relate. Any attempted but non-permitted assignment is
void. These Terms will be binding upon and inure to the benefit of
the parties and their permitted successors and assigns.
16.4 Severability. If any provision of these
Terms is found to be unenforceable, the remaining provisions will
continue in full force and effect, and the unenforceable provision
will be modified to the minimum extent necessary to make it
enforceable.
16.5 Waiver. No waiver of any provision of these
Terms will be effective unless in writing and signed by the party
granting the waiver. No failure or delay in exercising any right
will constitute a waiver of that right.
16.6 Force Majeure. Neither party will be liable
for any delay or failure to perform due to causes beyond its
reasonable control ("Force Majeure Event"), including natural
disasters, war, pandemic, riot, act of terrorism, acts of
government, or failures of third-party services or public
utilities. However, a Force Majeure Event does not excuse your
obligation to pay fees accrued prior to the event.
16.7 Export Compliance. You may not remove or
export from the United States or allow the export or re-export of
the Service or any related technology or materials in violation of
any restrictions, laws, or regulations of the United States
Department of Commerce, OFAC, or any other United States or
foreign agency or authority. You represent and warrant that you
are not: (a) a resident or national of any country subject to U.S.
trade sanctions; (b) designated on any list of prohibited or
restricted parties maintained by the U.S. government; or (c) 50%
or more owned by any party on such lists. Zoah may terminate these
Terms immediately without notice or liability to comply with
applicable export controls and sanctions laws.
16.8 Anti-Bribery. Neither party will take any
action that would be a violation of any applicable laws that
prohibit the offering, giving, promising to offer or give, or
receiving, directly or indirectly, money or anything of value to
any third party to assist either party in retaining or obtaining
business. Examples of such laws include the U.S. Foreign Corrupt
Practices Act and the UK Bribery Act 2010.
16.9 U.S. Government Users. The Service is deemed
a "commercial item" and "commercial computer software" as defined
in FAR section 12.212 and DFAR section 227.7202. Any use,
modification, reproduction, release, performance, display, or
disclosure of the Service by the U.S. Government will be governed
solely by these Terms and all other use is prohibited.
16.10 Independent Contractors. The parties are
independent contractors, not agents, partners, or joint venturers.
Neither party is authorized to bind the other to any liability or
obligation.
16.11 No Third-Party Beneficiaries. There are no
third-party beneficiaries of these Terms.
16.12 Notices. Notices to Zoah must be sent to
legal@zoah.com. We may send
notices to the email address associated with your Account. Notices
will be deemed given upon confirmed delivery if by email, or two
days after mailing if by overnight commercial delivery.
16.13 Entire Agreement. These Terms, together
with our Privacy Policy and any other agreements expressly
incorporated by reference, constitute the entire agreement between
you and Zoah regarding the Service and supersede all prior or
contemporaneous statements, whether written or oral, about its
subject. Zoah expressly rejects any terms included in your
purchase order or similar document, which may only be used for
accounting or administrative purposes.
16.14 Contact Information. If you have questions
about these Terms, please contact us:
Zoah Inc.
Email: legal@zoah.com
Website: zoah.com