- BINDING AGREEMENT
Zikto Corp. (“Zikto,” “we,” “our” or “us”) operates online and mobile services, including the website located at www.zikto.com (the “Site”), provides apps (“Apps”), and offers certain other related features or content from time to time (the “Additional Features”) (the Site, Apps, and Additional Features shall sometimes be collectively referred to herein as our “Services”). Certain aspects of our Services are offered to you in connection with your use of our posture monitoring device (the “Wearable ”). Zikto includes its Affiliates, which shall mean subsidiaries, parent companies, joint ventures and other corporate entities under common ownership.
- CHANGES TO THIS AGREEMENT
We may modify this Agreement from time to time, without any liability to you. We will notify you of any revisions to this Agreement in accordance with Section 20 below. Modifications shall be effective thirty (30) days after posting unless stated otherwise. Notwithstanding the foregoing, you will be deemed to have agreed to any such modifications by your further use of our Services after any such modification is posted. It is important that you review this Agreement regularly to ensure you are updated as to any changes. If you do not agree with the modifications, please discontinue use of our Services immediately.
- YOUR ACCOUNT
In order to access some features of our Services, you may be required to register an account with us (“Account”).
You may never use another’s Account without permission or permit another to use your Account. You may not create more than one Account. You are prohibited from registering a new Account if you have previously had an Account terminated. You are solely and fully responsible for keeping confidential your Account password. You agree to accept full responsibility for all activities that occur within your Account, including any and all activities that are conducted through the use of your login details, whether or not authorized by you. You must notify us immediately of any breach of security or unauthorized use of your Account. Although we will not be liable for your losses caused by any unauthorized use of your Account, whether with or without your knowledge, you may be liable for our losses or the losses of our third-party licensors, content providers, merchants, advertisers, sponsors, and service providers (collectively, “Zikto Providers”) due to such unauthorized use.
Without limiting anything in this Agreement, we reserve the right, in our sole discretion, to restrict, suspend, or terminate your Account and/or your access to all or any part of our Services at any time, for any or no reason, with or without prior notice, and without liability, including in the event we stop offering any aspect of our Services. We expressly reserve the right to restrict, suspend and/or terminate your access to any part of our Services if we determine, in our sole discretion, that you have violated any of the terms of this Agreement. You also understand and acknowledge that if you delete your account, or if we terminate and/or delete your account in accordance with these terms, you may lose access to any data (such as data from a Wearable or your content), previously associated with your Account.
- PURCHASES, PAYMENTS & REFUNDS
Some aspects of our Services may require the payment of fees. You agree to pay all fees, charges and taxes that you incur. Unless otherwise noted, all currency references are in U.S. dollars. Zikto may at any time (and upon notice if required by applicable laws), change the amount of, or basis for determining, any fee or charge, or institute new fees or charges. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. We may, from time to time, modify, amend, or supplement its fees and fee-billing methods, and such changes shall be effective immediately upon posting on our Services.
If you have elected to access a paid aspect of our Services, upon your acceptance of this Agreement and submission of your order, you hereby agree that we have the right to automatically charge your credit card or debit your account for the applicable fees or charges, plus any applicable taxes we are required to collect, and you authorize us to do so. You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you.
OTHER THAN AS EXPLICITLY SET FORTH HEREIN OR IN ANY SUPPLEMENTAL TERMS OF SALE, YOU ACKNOWLEDGE THAT ZIKTO IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
- USER OBLIGATIONS &ONLINE CONDUCT
All users agree to use our Services only for lawful purposes. Specific prohibited activities include, but are not limited to:
- attempting to circumvent, disable or otherwise interfere with security-related features of our Services or features that prevent or restrict use or copying of any content or enforce limitations on use of our Services or the content therein;
- using any software that intercepts, mines, or otherwise collects information about other users or copies and stores any Zikto Materials (as defined below);
- using the Account, username, or password of another Account holder at any time or disclosing your password to any third party or permitting any third party to access your Account;
- Sublicensing, renting, leasing, selling, trading, giving, assigning or otherwise transferring your account to anyone;
- using our Services in a manner inconsistent with any and all applicable laws and regulations, including U.S. export and re-export control laws and regulations;
- Using communications tools we make available to users to spam; and
- Posting content that violates the rights of third parties.
Any conduct by you in violation of the foregoing prohibitions or conduct we determine in our sole discretion is inconsistent with the spirit of our Services, offensive to other users, or exposes us to legal liability may result in the suspension or termination of your Account and your access to our Services.
If you download our App from another platform, such as Apple or Google, you must also comply with its terms of service/use as well as this Agreement.
- Zikto Proprietary Rights
With the exception of content users, including you, upload, transmit or post through our Services, all materials contained on our Services, including all content, software, graphics, text and look and feel of the Site and Apps, and all trademarks, copyrights, patents and other intellectual property rights related thereto, are owned or controlled by Zikto, our Affiliates, our third party licensors, and/or our advertising partners (“Zikto Materials”). You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any Zikto Materials, or any other protectable aspects of our Services, in whole or in part.
We grant you a limited, non-exclusive license to use our Services subject to this Agreement, and for so long as you are not barred from receiving our Services under the laws applicable to you. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use Apps provided to you by or on behalf of Zikto, for the sole purpose of enabling you to use the App and access our Services, subject to any applicable license terms provided with the App and this Agreement, until your rights are terminated in accordance with such license and/or this Agreement. You do not obtain any other right or interest in Zikto or our Services.
All rights not expressly granted herein are retained by Zikto or their respective owners.
All content presented through our Services are strictly for informational purposes only, and does not constitute medical or professional advice. We are not medical professionals, licensed or otherwise. Our Services and the Wearable are not intended in any way to replace medical or professional care. We have no expertise in diagnosing or treating any type of medical condition. We are not responsible for any health issues that may result from using our Services or Wearables and all use of our Services and Wearables are at your sole risk. If you have any health concerns regarding our Services or Wearables, please consult with your medical provider.
- User Content
User content uploaded, transmitted or posted through our Services remains the property of the person supplying it and is protected, without limitation, pursuant to U.S. and foreign copyright and other intellectual property laws.
By submitting content to us through our Services, you automatically grant us and our designees, or warrant that the owner of such content has expressly granted us and our designees, a worldwide, royalty-free, irrevocable, perpetual, transferable, non-exclusive right and license to use, reproduce, publish, translate, edit, adapt, modify, sublicense, prepare derivative works of, copy, perform, display, distribute, host, store, market, advertise and sell content you upload, transmit or post to the Site or through our Services, including all patent, trademark, trade secret, copyright or other proprietary rights in and to such content. You also hereby grant each user of our Services a non-exclusive license to access content you upload, transmit or post to the Site or through our Services, and to use, reproduce, distribute, display and perform such content, each to the extent permitted through the functionality of our Services and under this Agreement.
You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any content uploaded, transmitted or posted by other users of our Services, in whole or in part, except as expressly permitted through the functionality of our Services and this Agreement.
All content made available to users throughout our Services are licensed, and not sold, to you.
- Unsolicited Submissions
We are pleased to hear from our customers and welcome their comments regarding our Services. Unfortunately, however, company policy does not allow us to accept or consider creative ideas, suggestions or materials other than those we have specifically requested. If, despite our request that you not send us any other creative materials, you send us creative suggestions, ideas, notes, drawings, concepts or other information (collectively, the “Unsolicited Submissions”), the Unsolicited Submissions shall be deemed, and shall remain, the property of Zikto. None of the Unsolicited Submissions shall be subject to any obligation of confidence on the part of Zikto, and we shall not be liable for any use or disclosure of any Unsolicited Submissions. Without limitation of the foregoing, we shall exclusively own all now known or hereafter existing rights to the Unsolicited Submissions of every kind and nature, in perpetuity, throughout the universe and shall be entitled to unrestricted use of the Unsolicited Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Unsolicited Submissions. You waive any and all moral rights in any such Unsolicited Submissions as well as any claim to a right of credit or approval. The foregoing shall also apply to any creative submissions you make at our specific request, unless otherwise agreed in writing.
- COPYRIGHT NOTICES &COMPLAINTS
The Digital Millennium Copyright Act (“DMCA”) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet.
If you believe that your copyrighted work has been copied, reproduced, displayed, duplicated, performed, distributed, or otherwise infringed without your authorization and is available on our Services in a way that may constitute copyright infringement, you may provide notice of your claim to Zikto’ Designated Agent below. For your notice to be effective, it must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- A description of the copyrighted work that you claim has been infringed upon;
- A description of where the material that you claim is infringing is located;
- Information reasonably sufficient to permit Zikto to contact you, such as an address, telephone number, and, if available, an e-mail address at which you may be contacted;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Zikto’ Designated Agent is:
Attn: Intellectual Property Agent
2700 Rose Ave., Suite K
Signal Hill, CA 90755
If your user content or other information has been affected by reason of a notification under the DMCA, you may make a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. You will be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that Your Content or your activity is not infringing the copyrights of others. When we receive a counter-notification, we may reinstate the material in question.
To file a counter-notification with us, you must provide us with a written communication sent to Zikto’ Designated Agent identified above that sets forth the following items:
- An identification of the URLs or other unique identifying information of material that Zikto has removed or to which Zikto has disabled access;
- Your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Santa Clara County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under the DMCA or an agent of such person;
- A statement, under penalty of perjury, that you have a good faith belief that content at issue was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your physical or electronic signature
- NON-COMMERCIAL USE
Our Services are for your personal use only and may not be used in connection with any commercial endeavors. Any use of our Services in violation of this provision, including communicating any advertisement or solicitation, or collecting usernames and/or email addresses of account holders by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to our Services, is prohibited.
- ELECTRONIC COMMUNICATIONS
When you use our Services or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We may communicate with you by email (if provided by you) or by posting notices through our Services. You agree that all agreements, notices, disclosures and other communications that we provide you electronically satisfy any legal requirement that such communications be in writing.
Our Services may contain links to websites operated by third parties. We do not monitor or control the linked sites and make no representations regarding, and are not liable or responsible for the accuracy, completeness, timeliness, reliability or availability of, any of the content uploaded, displayed, or distributed, or products, or services available at these sites. If you choose to access any third party site, you do so at your own risk. The presence of a link to a third party site does not constitute or imply our endorsement, sponsorship, or recommendation of the third party or of the content, products, or services contained on, or available through, the third party site. We reserve the right to disable links from or to third party sites.
- THIRD-PARTY MERCHANTS & PROVIDERS
Our Services may enable you to order and receive products, information and services from third parties that are not owned or operated by us. The purchase, payment, warranty, guarantee, delivery, maintenance, and all other matters concerning the merchandise, services or information, opinion or advice ordered or received from such businesses are solely between you and such third parties. We do not endorse, warrant, or guarantee such products, information, or services, and are not liable for the accuracy, completeness, or usefulness of such information or the quality of availability of such products or services. We will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of such products, services, or information, or for ensuring the confidentiality of your credit card information. Any separate charges or obligations you incur in your dealings with these third parties are your responsibility and are not part of the fee, if any, charged for our Services. In addition, our Services may prompt you to establish an account with a third party not owned or operated by us. Your agreement and understanding with any such third party is solely between you and such third party. We will not be a party to or in any way be responsible for your agreement with such third-party. Any disputes you may encounter with such third party shall be settled solely between you and such third party.
- DISCLAIMERS & LIMITATION OF LIABILITY
- LIMITED WARRANTY AND DISCLAIMER
Zikto provides a limited warranty on Wearables purchased through the Site, as described on our warranty page. EXCEPT AS PROVIDED ON OUR WARRANTY PAGE (WHICH IS HEREBY INCORPORATED INTO THESE TERMS), ZIKTO DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, QUIET ENJOYMENT, AND ACCURACY.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, OUR SERVICES IS AT YOUR SOLE RISK. OUR SERVICES AND ANY CONTENT APPEARING ON OUR SERVICES, INCLUDING USER GENERATED CONTENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
- LIMITATION OF LIABILITIES
UNDER NO CIRCUMSTANCES SHALL WE OR ANY OF OUR AFFILIATES OR ZIKTO PROVIDERS BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE WEARABLES OR ANY ASPECT OF OUR SERVICES, INCLUDING BUT NOT LIMITED TO RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM WEARABLES OR OUR SERVICES OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO ZIKTO’S RECORDS, PROGRAMS, OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, SERVICES AND WEARABLES MADE AVAILABLE TO YOU BY ZIKTO. ZIKTO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF WEARABLES OR OUR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL ZIKTO’S CUMULATIVE LIABILITY TO YOU EXCEED THE GREATER OF (i) THE AMOUNT YOU HAVE PAID US IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM AND (II) THE PRICE PAID BY YOU TO US FOR THE WEARABLE. IF YOU HAVE NOT PAID ANY AMOUNTS DURING SUCH 180 DAY PERIOD NOR PURCHASED A WEARABLE, YOU ACKNOWLEDGE THAT YOUR SOLE REMEDY SHALL BE TO CEASE USING OUR SERVICES AND TERMINATE YOUR ACCOUNT
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A USER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO SUCH USER, AND SUCH USER MAY HAVE ADDITIONAL RIGHTS.
- APPLICABLE LAW & JURISDICTION
The Federal Arbitration Act (including its procedural provisions) is the law that will be applied to determine whether the arbitration provisions set forth in this Section 13 can be enforced and how it should be interpreted.
Apart from that, this Agreement and our relationship will be governed by California law, except for its conflicts of laws principles. Judicial proceedings must be brought in state or federal court in Santa Clara, California, unless we both agree to some other location. You and Zikto both consent to venue and personal jurisdiction in Santa Clara, California.
Any claim or cause of action arising out of or related to use of our Services or this Agreement must be filed within 1 year after such claim or cause or action arose regardless of any statutes or law to the contrary. In the event any such claim or cause of action is not filed within such 1 year period, such claim or cause of action are forever barred.
Most concerns can be solved quickly by contacting us at our customer center. In the unlikely event that we cannot solve your concern, you and Zikto agree to submit any disputes relating to our Services that involve a claim of less than US$5,000 (“Small Claims”) exclusively to a binding non-appearance-based arbitration. A party electing arbitration shall initiate proceedings by filing an arbitration demand with the American Arbitration Association (AAA). The arbitration proceedings shall be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes, of which copies are available at www.adr.org. In addition, you and Zikto agree that the following rules shall apply to the arbitration proceedings: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
You agree to indemnify and hold Zikto, Zikto Providers, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of our Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if content you post to the Site or through our Services causes us to be liable to another.
The provisions of this Agreement are intended to be severable. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
- ENFORCEABILITY, ENTIRE AGREEMENT & NON-WAIVER
This Agreement is deemed accepted upon any use of any of our Services. This Agreement and any additional terms referenced herein constitute the entire agreement between you and us regarding the use of our Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
You may not transfer or assign any of the rights or licenses granted to you hereunder without our prior written consent therefor. However, we may transfer or assign all or a part of our rights or responsibilities under this Agreement to any person or entity without your consent.
- FORCE MAJEURE
We are not liable for any changes or problems out of our control, for example changes or problems caused by like natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
- Technical & Customer Support
Subject to the other provisions of this Agreement, Zikto will attempt to help you with any queries or problems that you may have with our Services, any of your purchases, and any questions about this Agreement generally. To reach our customer support team, please e-mail us at email@example.com.
We may notify you by posting(s) made on our Site, sending you an e-mail or using other ways of communicating with you based on the contact information you provide to us. Any notice to Zikto required according to this Agreement must be in writing and addressed to Zikto Inc., 2700 Rose Ave., Suite K, Signal Hill, CA 90755, unless we have provided a more specific method way of notifying us.
Under California Civil Code Section 1789.3, users of our Services in California are entitled to 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 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210,