Zambooie, Inc. (Zambooie), maker of ZamStores, www.zamstores.com (this Site), has created this website privacy policy (Privacy Policy) in order to demonstrate and inform you, the user, together with any company or other business entity you are representing, if any (collectively You or Your) of our firm commitment to fair information practices and the protection of Your privacy. This Privacy Policy applies only to information collected through this Site and not to information collected offline.
- Types of Information Collected.
- 1.1 Traffic Data Collected. Zambooie automatically tracks and collects aggregate data and information when You visit this Site, including but not limited to, Your (i) IP address; (ii) domain server; (iii) type of computer; and (iv) type of web browser (collectively, Traffic Data). Traffic Data is anonymous broad demographic information that does not personally identify You, but is helpful for administering our Site and improving Your experience on the Site. Zambooie may share such non-personally identifiable Traffic Data with existing and prospective business partners and advertisers. As is the case with most web sites, Zambooie also uses cookies to customize content specific Your interests.
- 1.2 Personal Information Collected. In order for You to access and use certain services Zambooie offers via this Site, Zambooie may require You to provide information that personally identifies You (Personal Information). Personal Information may include: (i) Your email address and basic contact information; (ii) Your account, credit card number or other financial information; and (iii) demographic data, such as Your zip code and gender; (iv) computer sign-on data, statistics on page views, traffic to and from the Site and ad data (all through cookies - You can take steps to disable cookies on Your browser, however this is likely to affect Your ability to use the Site); (v) desired name for Your Store; (vi) discussion board posts and other messages, including correspondence between Zambooie and You; (vii) general information regarding the Zambooie Services You have registered to receive and the operation of Your Store. If You communicate with Zambooie by e-mail or otherwise complete an on-line form or survey, any information provided in such communication may be collected as Personal Information.
- 1.3 Data and Reports Compiled or Generated Through the Site Services. As a part of certain services, Zambooie compiles and stores data and information and generates reports related Your access to and use of such services (Service Data and Reports).
- Use of Personal Information Collected.
- We use Your personal information to:
- provide Zambooie Services and products;
- resolve disputes, calculate and collect fees, and troubleshoot problems;
- verify users' identity and the information users provide;
- encourage safe online experience and enforce our policies;
- customize users' experience, analyze site usage, improve and measure interest in our services, and inform users about services and updates;
- communicate administrative announcements when we need to provide users with information that may affect their use of Indie Labs Services and products;
- communicate marketing and promotional offers to our users;
- provide customer service; and
- perform other business activities as described when we collect the information.
As part of your registration for Zambooie Services on the ZamStores Site, You agree that You may receive certain administrative communications from Zambooie, such as administrative announcements and customer service messages regarding Zambooie Services and products, and You will not be able to opt out of receiving such administrative communications.
- Confidentiality and Security of Personal Information.
Except as otherwise provided in this Privacy Policy, Zambooie will keep Your Personal Information and Service Data and Reports private and will not share any of it with third parties, unless such disclosure is necessary to: (a) comply with a court order, legal process or as otherwise required by law; (b) protect Zambooie or Your rights or property; (c) protect against misuse of the Site and to identify persons who may be violating law or the rights of third parties; (d) cooperate with the investigations of possibly unlawful activities; (e) enforce our terms of service; (f) coordinate with our corporate affiliates the Services we provide to You; (g) deliver our Services to You. Please note that Zambooie may not provide You notice prior to disclosure in such cases. To prevent unauthorized access, maintain data accuracy, and ensure the correct use of information, Zambooie has put in place industry standard physical, electronic, and managerial procedures to safeguard and secure the information Zambooie collects on-line that is under Zambooie's control. For example, Your Personal Information is stored on secure servers. Zambooie provides You with the capability to transmit Your Personal Information via secured and encrypted channels if You use a similarly equipped web browser. However, no data transmission can be guaranteed to be completely secure, and Zambooie does not warrant the security of information transmitted by you over the Internet to Zambooie.
- Other Limits to Your Privacy.
This Site provides links to various web sites or sponsors, which we do not control, for your convenience. When you click on one of these links, you will be transferred out of our Site and connected to the web site of the organization or company that you selected. We are not responsible for the nature, quality or accuracy of the content or opinions expressed in such web sites, and such web sites are not investigated, monitored or checked for quality, accuracy or completeness by us. Inclusion of any linked web site on our Site does not imply or express an approval or endorsement of the linked web site by Zambooie, or of any of the content, opinions, products or services provided on these web sites. Even if an affiliation exists between our Site and a third-party web site, Zambooie exercises no control over linked sites. Each of these linked sites maintains its own independent privacy and data collection policies and procedures. While Zambooie expects its partners, advertisers and affiliates to respect Your privacy, Zambooie cannot be responsible for the actions of third parties. If You visit a web site that is linked to from our Site, we encourage You to consult that web site's privacy policy before providing any personal information and whenever interacting with any web site.
- Disclosure of Customer Information through Business Transfers.
As Zambooie continues to develop its business, Zambooie may buy, merge or partner with other companies or businesses, and in so doing, acquire customer information. In such transactions, Your Personal Information may be among the transferred assets. Similarly, in the unlikely event that a portion or substantially all of Zambooie assets are sold or transferred to a third party, Personal Information likely would be one of the transferred business assets.
- Consent to Privacy Statement.
This Site is controlled, operated and administered entirely within the United States. By using this Site, you signify your agreement to the terms of our Privacy Policy. If you do not agree with this Policy, please do not disclose any Personal Information through this Site, or please refrain from accessing the Site. This Privacy Policy and the use of this Site are governed by Tennessee law. Any claim related to the Site or this Privacy Policy shall be brought pursuant to the Dispute Section found within the Merchant User Agreement. This Privacy Policy and the notices outlined herein are not intended to and do not create any contractual or other legal rights in or on behalf of any third party.
- Updates and Changes to Privacy Policy; Account Revisions, Revoking and Deleting Personal Information.
Zambooie reserves the right to add to, change, update or modify this Privacy Policy by posting such change, update or modification on the Site. Any such change, update, or modification will be effective immediately upon posting on the Site.
At any time, You may revoke your consent, cease further use of Your email address to send You updates, and direct Zambooie to delete the information You have supplied. Although it is not always possible to remove or modify information in the databases, Zambooie will make reasonable efforts to do so.
Zambooie welcomes your comments and questions. You may contact us using the following address and contact information:
E-mail: info@zambooie.com
Telephone: 615.316.9074
August 8, 2008 |
Zambooie maintains this Acceptable Use Policy ("AUP") to provide users ("You" or "Your") of Zambooie's services, systems and network (the "Services") with information relating to Your use of our site at www.zamstores.com (the "ZamStores Site"), and restrictions on the types of products and services You will be permitted to offer for sale on the online store that you maintain on the ZamStores Site ("Your Store").
Zambooie may amend this Acceptable Use Policy at any time by posting the amended AUP on the ZamStores Site. All amended terms shall automatically be effective immediately after they are posted on the ZamStores Site. Your continued use of Zambooie Services will constitute Your acceptance of any changes or additions to this Acceptable Use Policy.
Scope and Application of AUP
This AUP forms an integral part of the Merchant User Agreement (as posted on the ZamStores Site and amended from time to time). Your compliance with, and cooperation in Zambooie's enforcement of, this AUP is an important condition to Your continuing contractual rights to use the Services.
This AUP is not intended to address all possible unacceptable uses of the Services. As a result, Zambooie reserves complete discretion to determine what constitutes an unacceptable use of its Services and reserves the right to suspend or terminate Your Services, or take such other action as Zambooie deems appropriate in its sole and exclusive discretion.
Lawful Purpose
You may use the Services only for lawful purposes. You may not transmit, store or present any information, software, data, file or material in violation of any applicable law or regulation. You may not use the Services to facilitate, or otherwise assist others in, the violation of any law or regulation.
Prohibited Activities
The following list is illustrative, but not exhaustive, of the activities that Zambooie, at its sole discretion, may prohibit You and Your Customers from engaging in on the Site. You agree that Without express consent from Zambooie, Your activities and any products, services or content published and distributed through Your Store (as that term is defined in the Merchant User Agreement) using the Zambooie Services shall not:
- violate the list of Prohibited and Restricted Items Policy that is incorporated herein;
- be false, inaccurate or misleading;
- be fraudulent or involve the sale of counterfeit or stolen items;
- infringe or misappropriate any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, anti-discrimination or false advertising);
- be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
- be obscene or contain child pornography;
- contain hate speech, directed at any individual, group or entity;
- contain immoral, scandalous, vulgar, tasteless, indelicate, crude or profane material;
- contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- involve the transmission of any unsolicited commercial or bulk email (known as "spamming") and You shall not use Your Account or Your Store as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or ponzi schemes;
- involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of the Merchant User Agreement;
- be harmful or potentially harmful to the Zambooie Server structure as determined in Zambooie's sole discretion, including without limitation overloading the Zambooie technical infrastructure;
- involve subleasing Your account or offering "free space" on or other access to Your account or Your Store to third parties;
- create liability for Zambooie and its subcontractors or expose them to undue risk or otherwise engage in activities that Zambooie, in its sole discretion, determines to be harmful to Zambooie's affiliates, operations, reputation, or goodwill;
- link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation.
Restricted Activities (Special to PayPal)
PayPal users should be aware that PayPal will not process payments for certain activities. PayPal's Acceptable Use Policy identifies activities that are illegal or may be illegal under certain circumstances, and details certain types of activities for which PayPal has decided not to process payments, even if the activities may be legal.
Your relationship with PayPal is separate from Your relationship with Zambooie and is governed by the terms and conditions contained in the PayPal User Agreement and the PayPal Privacy Policy. Such terms and conditions are available at PayPal.
Prohibited Items
The following list is illustrative, but not exhaustive, of the item that You and Your Customers are prohibited from selling or promoting on the Site. As a merchant using Zambooie's Services, You are solely responsible for the sale and purchase of items coordinated through Your Store. Zambooie specifically prohibits sales or promotion of the following items:
- Blood, Bodily Fluids and Body Parts
- Burglary Tools
- Counterfeit Items
- Illegal Drugs & Drug Paraphernalia
- Fireworks, Destructive Devices and Explosives
- Identity Documents, Personal Financial Records & Personal Information (in any form, including mailing lists)
- Lottery Tickets, Sweepstakes Entries and Slot Machines
- Obscene Material and Child Pornography
- Offensive Material or Hate Speech
- Police Badges and Uniforms
- Prescription Drugs and Devices
- Stocks and Other Securities
- Stolen Property
- Tobacco Products
- Alcoholic Products
Restricted Items
You agree that the following types of items may only be allowed if done fully in compliance with all laws in the location of the seller and buyer:
- Downloadable Digital Music
- Event Tickets
- Food Items
- Hazardous, Restricted, and Perishable Items
- Pesticides
- Used Clothing and Bedding
- Adult Items and Pornography
- Weapons and related items (such as firearms, firearm parts and magazines, ammunition, BB and pellet guns, tear gas, stun guns, switchblade knives, and martial arts weapons)
Privacy
As set forth in Zambooie's Privacy Policy, which is incorporated into the Master User Agreement, Zambooie is concerned with the privacy of on-line communications and websites. The Internet is no more secure than other means of communications. You should assume that all on-line communications are insecure. Zambooie is not responsible for the security of any information transmitted over its Services.
Spamming and Related Activities
Zambooie strictly prohibits Your use of Zambooie's Services to transmit SPAM or to host a site that is advertised or announced via SPAM. "SPAM" is any form of unsolicited advertisement or informational announcement that is transmitted, whether singularly or in bulk, via any Internet-based communications medium. Activities that violate this AUP may also subject You to civil liability to third parties and to criminal penalties.
Permission Based Communications
You may use Zambooie's Services to transmit permission-based communications for purposes of marketing Your goods and services, provided that You otherwise comply with the standards set out in this AUP, the Zambooie Privacy Policy and all applicable laws including, but not limited to, the CAN-SPAM Act. All marketing conducted using Zambooie's Services must be permission (opt-in) based. You must keep adequate and verifiable records to prove that Your marketing is strictly permission-based. In addition, should You purchase mailing lists or other types of data that are to be used to contact third parties via Zambooie's Services, You must verify that the lists have been compiled on a strict "opt-in" basis.
In addition to the above, all permission-based communications sent using Zambooie's Services must include the following (and You are required to take the corresponding actions set forth below):
- A working "unsubscribe" link. (You must honor all unsubscribe requests within 72 hours from the time they enter Zambooie's Services).
- The recipient's accurate e-mail address in the "to" line and the sender's accurate e-mail address in the "from" line.
- A working link to Your privacy policy.
- A working "abuse" address and/or link. (You must answer all complaints forwarded to this address within 72 hours from the time they enter Zambooie's Services).
- An up-to-date website that corresponds with the domain portion of the response e-mail. Your Store must conspicuously display Your up-to-date mailing address, telephone number and facsimile number.
You are solely responsible for the transmission of all such permission-based communications related to Your Store and Your use of the Zambooie Services. Zambooie reserves the right to suspend or terminate Services to You and Your Store in the event Zambooie receives, in its sole and exclusive discretion, an excessive number of complaints related to Your permission-based communications, whether such complaints are made by parties who "opt-in," or otherwise.
Prohibited Uses
YOUR USE OF ZAMBOOIE'S SERVICES MAY NOT VIOLATE ANY OF THE PROVISIONS IN THIS AUP. ZAMBOOIE MAY SUSPEND OR TERMINATE YOUR SERVICES, OR ALTERNATIVELY REMOVE (TO THE EXTENT POSSIBLE) ANY MATERIALS, IF IT DETERMINES, IN ITS SOLE AND EXCLUSIVE DISCRETION, THAT YOU HAVE ENGAGED IN ANY ACTIVITY THAT VIOLATES THIS AUP.
You violate this AUP when You, end users of Your Store or any third party acting on behalf of You or Your end users, engage in any activity, directly or indirectly, or attempt to engage in an activity, whether successfully or otherwise, contrary to the terms of this AUP.
Zambooie will not intervene or become involved in any disputes between You and a third party, including but not limited to end users of Your Store. Consequently, Zambooie reserves the right, in its sole and exclusive discretion, to suspend or terminate Services to You upon its receipt of any third party complaint that You have engaged in any activity that violates this AUP, that may otherwise subject Zambooie to liability for any reason, or that may cause Zambooie to incur legal fees or other expenses.
Zambooie may suspend and terminate Your use of the Services without notice to You and end users of Your Store for breach of this AUP. Zambooie may also report Your activities to federal and/or state law enforcement agencies.
United States Export Laws
United States export control laws govern Your use of Zambooie's Services. These laws apply to You and Your use of Zambooie's Services, regardless of whether You actually reside in the United States.
You may not use Zambooie's Services for any purpose that violates export control laws, which may include the sale of products that may be legal to sell in the United States, but illegal to export. You may not use Zambooie's Services to offer or provide services on Your Store to end users with whom United States citizens may not do business.
Further, You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Zambooie is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
Additional information about United States export laws, may be obtained from the United States government's portal to exporting and trade services at http://www.export.gov/exportcontrols.html.
Monitoring of Services; Cooperation with Law Enforcement; Legal Documents
You are solely responsible for ensuring that materials send, posted or distributed using Zambooie's Services comply with this AUP and all applicable laws and regulations. Zambooie does not review, edit, censor or take responsibility for any information You, other customers or Your end users may create.
Zambooie may disclose information, including information that You may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation or governmental request. Zambooie assumes no obligation to inform You that such information has been provided and, in some cases, Zambooie may be prohibited by law from providing You with notice.
On occasion, Zambooie may have a need to communicate with You about issues that relate to billing, service changes, additions and modifications to its Services. Zambooie may choose the method of such communication in its sole discretion, which may include, without limitation, email.
Contact Information
It is Your responsibility to provide and check the account and contact information, including a required valid e-mail address, that You provide to Zambooie during the sign-up process. It is Your responsibility to inform Zambooie promptly of any changes to Your account or contact information. Zambooie has no responsibility for communications that are misdirected as a result of Your failure to provide Zambooie with updated contact information.
August 8, 2008 |
Welcome to the ZamStores.com web site (this "Site"). This Site is offered to you by Zambooie, Inc. ("Zambooie," "Us" or "We"), and is conditioned on your acceptance, without modification, of the terms, conditions, policies and notices contained on this page (this "Agreement"). By using, accessing or registering on this Site, you, along with any entity or company you are representing, if any (collectively, "You" or "Your"), agree to be bound by and hereby become a party to all terms of this Agreement, as well as any amendments and all other terms and conditions incorporated herein by reference. If You do not agree with the terms and conditions of this Agreement, You may not use the Site. This Agreement becomes effective upon your acceptance in registration.
Zambooie provides software programs ("Software") that enable merchants to create online stores to sell their products and services online (including but not limited to MP3s). Zambooie also provides merchant services, including hosting of the online store site and other related services as may be offered from time to time (collectively, "Services"). In exchange for Your agreement to be bound by this Agreement, Zambooie will provide You with a ZamStores account with a limited license to use the Software and receive the Services ("Your Account"). Upon acceptance of the terms of this Agreement and Payment pursuant to Section 6.1 of this Agreement and Zambooie's Fees Policy, incorporated herein by reference, Your Account will be established.
You authorize Us to process any and all of Your ZamStores transactions initiated by using the password that You establish through registration on this Site. You are solely responsible for maintaining the confidentiality of such password.
- Eligibility.
This Agreement will not bind Zambooie unless You are at least 18 years old. If You are registering as a business entity, You represent that You have the authority to bind the entity to this Agreement. If we become aware that such information is incorrect, we reserve the right, in our sole discretion and without notice to you, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.
- Ownership, Licenses, Restrictions and Additional Services
- 2.1 Software Ownership. All of the Software that Zambooie provides, and all worldwide intellectual property rights therein, are the exclusive property of Zambooie. We reserve all rights in and to the Software unless otherwise expressly granted to You in this Agreement.
- 2.2 Software License. Subject to the terms and conditions of this Agreement, Zambooie grants You a limited, non-exclusive, non-transferable, revocable license to remotely access and use the Software on servers operated by or for Zambooie ("Zambooie Servers") through the ZamStores Site solely for the purpose of building and maintaining an interactive store hosted by the Zambooie Servers on which You offer Your or a third party's products or services ("Your Store").
- 2.3 Software License Restrictions. You agree and acknowledge that Zambooie owns the Software and its structure, organization, and source code, all of which are valuable trade secrets of Zambooie. Accordingly, except as expressly allowed under Section 2.2, You will not, either directly or indirectly, (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or (d) transfer your interest in and to Your Store to any third party.
- 2.4 Zambooie Trademark Ownership, License And Restrictions. Subject to the terms and conditions of this Agreement, and upon Your election to use and pay applicable fees (if any) for certain features of the Software, Zambooie grants to You a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks provided to you by Zambooie under this Agreement ("Zambooie Marks"), solely for use in the display on those locations on Your Store's web pages as designated by Zambooie in its sole discretion, that is incorporated herein by reference and that Zambooie may periodically change from time to time. Zambooie grants no rights in the Zambooie Marks other than those expressly granted in this section 2.4 of this Agreement. You acknowledge Zambooie's exclusive ownership of the Zambooie Marks. You agree not to take any action inconsistent with such ownership and You agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Zambooie Marks or in such a way as to create combination marks with the Zambooie Marks. At Zambooie's request (in its sole discretion), You will immediately discontinue any use and display of the Zambooie Marks. You acknowledge and agree that, except with respect to the trademark license granted herein in and to the Zambooie Marks, no licenses are granted by Zambooie to any other trademarks, service marks, or trade names owned by Zambooie or its affiliates.
- 2.5 Additional Features. To access certain additional features from Zambooie, you may be required to install additional software (including third party software) that is subject to supplemental or independent terms and conditions ("Additional Software"). Similarly, to access certain additional services (including third party services), you may be subject to supplemental or independent terms and conditions ("Additional Services"). You agree that You will not use such Additional Software or Additional Services unless You have agreed to the applicable terms and conditions, including but not limited to Your payment of additional fees as required.
- 2.6 Publicity. You agree that we may publicly disclose that we are providing services to You and may include Your name in promotional materials including press releases and on the Site.
- Services.
- 3.1 Services. Upon activating Your Account and, subject to the payment of applicable fees, Zambooie will provide certain hosting, support and other miscellaneous Services for the Software that You and Your Store license under this Agreement during the term of this Agreement as published on the ZamStores Site. Your Store shall be hosted on a Zambooie Server on which several merchants may share the resources and network capacity of that Zambooie Server. Zambooie will assign Your Store a sub-domain name, which will be its yourstorename.zamstores.com. Zambooie will not provide you with domain name registration services additional to assigning it the sub-domain name, above. Zambooie reserves the unilateral right to refuse to use the name of the store that you supply.
- 3.2 Store Design. Subject to Your payment of applicable fees, if You request, and if Zambooie accepts, Zambooie will provide design and customization Services for Your Store as provided in this Section of this Agreement, in accordance with Zambooie's then-current customization terms and conditions. You shall provide all text, music, sound, photographs, video, graphics, logo data, software, design, information and all other content for Your Store to Zambooie within a time period designated by Zambooie. Zambooie shall transfer all Your content into electronic form and a user-accessible format.
- 3.3 Changes In Services. Without giving You prior notice, Zambooie reserves the right to change, amend and/or otherwise alter the Services it provides herein with equivalent or otherwise equal Services. You agree to receive administrative communications from Zambooie in regards to the Software, Services, Your Account, policy changes and system updates. Further, You agree to receive administrative communications from Us in regards to the Software, Services, Your Account, policy changes and system updates through the email address You provide in registering.
- Your Store & Control of Its Content.
- 4.1 Control of Your Store. You alone will be responsible for the development, operation and maintenance of Your Store, including accepting, processing and filing customer orders generated through Your Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Store. You are solely responsible for fulfilling orders from Your Store, and Zambooie can immediately terminate Your Account, pursuant to Section 12.2 of this Agreement, if you neglect your obligations under this Section 4.1 of this Agreement. You agree that Zambooie has no obligation to fulfill customer orders from Your Store. You further agree that Zambooie has no obligation to back-up any data related to Your Store's operations and you should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.
- 4.2 Control of Your Store's Content. You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Your Store, regardless of whether Zambooie provides any design or customization Services to You under this Agreement, including all descriptions of the products and services You offer to customers of Your Store and user-generated content on and related to Your Store. As a conduit, Zambooie will give You complete discretion over Your content, provided it is compatible and interoperable with the Software and Services provided by Zambooie under this Agreement. You retain all rights, title and interest in and to all intellectual property rights embodied in Your content, exclusive of any content provided by Zambooie. Notwithstanding anything contained in the foregoing, if You breach any of the covenants listed in Section 5.1 of this Agreement (under the section called "Your Covenants"), Zambooie is entitled to suspend or terminate Your Store and/or any access to information or data related to Your Account and the Software in accordance with Section 12 of this Agreement (under the section called "Suspension and Termination").
- 4.3 Passive Conduit. You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or content (including but not limited to MP3s), Zambooie and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Store. Zambooie has no obligation to You or any third party, and undertakes no responsibility, to review Your Store, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Store to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if Zambooie believes in its sole discretion (as applicable) that Your Store or any products, services, content or other materials in the Store or on Zambooie Servers may create liability for Zambooie, You agree that Zambooie may take any actions with respect to the content or materials or Your Store that Zambooie believes are prudent or necessary to minimize or eliminate Zambooie's potential liability. Zambooie shall, as applicable, be the sole judge of what content or materials may create liability for Zambooie.
- 4.4 Content License. During the period that Zambooie provides Services to You pursuant to Section 3 of this Agreement, You hereby grant to Zambooie and its subcontractors a non-exclusive, irrevocable, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Your content solely for the purposes provided in this Agreement. To the extent You offer MP3s as part of the products or content of Your Store, You further grant Zambooie right to include such MP3s in a master store controlled by Zambooie.
- Covenants.
- 5.1 Covenants by You. You covenant that any products, services, or content published and distributed on Your Store and Your related activities shall not violate the Zambooie Acceptable Use Policy that is incorporated herein by reference and as it may be amended from time to time, nor shall they:
- a. be false, inaccurate or misleading;
- b. be fraudulent or involve the sale of counterfeit or stolen items;
- c. infringe or misappropriate any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- d. violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising);
- e. be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
- f. be obscene or contain child pornography;
- g. contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- h. involve the transmission of any unsolicited commercial or bulk email (known as "spamming") and You shall not use Your Account or Your Store as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or ponzi schemes;
- i. involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of this Agreement;
- j. be harmful or potentially harmful to the Zambooie Server structure, as determined in Zambooie's sole discretion, including, without limitation, overloading the Zambooie technical infrastructure;
- k. involve subleasing Your Account, or offering "free space" on, or other access to, Your Account or Your Store to third parties;
- l. create liability for Zambooie and its subcontractors, or expose them to undue risk, or otherwise engage in activities that Zambooie, in its sole discretion, determines to be harmful to Zambooie's affiliates, operations, reputation, or goodwill; and
- m. link directly or indirectly to, or include descriptions of, goods or services that violate any applicable law, statute, ordinance or regulation, or that violate Zambooie's Acceptable Use Policy that is incorporated herein by reference and may be amended from time to time.
Furthermore, You agree to display and adhere to a terms of use or other user-type agreement, as well as a privacy policy, governing Your operation of Your Store and Your conduct with Your Store's customers.
- 5.2 Breach of Covenant. Your failure to comply with the covenants set forth in Section 5.1 of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination under Section 12 of this Agreement.
- Fees, Taxes and Audit Rights.
- 6.1 Fees. You shall pay the fees set forth for the Software license and Services purchased by You in accordance with Zambooie's Fees Policy that is incorporated into this Agreement by reference. Zambooie unilaterally may change the fees for its Services from time to time.
- 6.2 Payment Terms. Pursuant to the Fees Policy, You will pay for Your ZamStores subscription with Your credit card. You agree to pay for non-refundable monthly subscription and other annual or one-time fees, in advance, including fees for the license of Software and Services to be rendered to You by or on behalf of Zambooie in the following month.
THE SERVICE IS BILLED IN ADVANCE ON A MONTHLY BASIS AND IS NON-REFUNDABLE. THERE WILL BE NO REFUNDS OR CREDITS FOR PARTIAL MONTHS OF SERVICE, OR REFUNDS FOR MONTHS UNUSED WITH AN OPEN ACCOUNT. IN ORDER TO TREAT EVERYONE EQUALLY, NO EXCEPTIONS WILL BE MADE.
- 6.3 Taxes. All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on Zambooie's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Software and performance of the Services hereunder.
- Disclaimer of Warranties. Zambooie, its suppliers and service providers, provide the software, additional software, and services, on an "as is" basis and expressly disclaim any and all express, implied or statutory warranties, including the warranties of merchantability, fitness for a particular purpose, quiet enjoyment, title, non-infringement, and warranties arising from a course of dealing, usage or trade practice. Zambooie, its suppliers and service providers, do not warrant that the software, additional software, or services will be error-free or uninterrupted, and make no representations regarding uptime, use, data security, accuracy and reliability of their services. You acknowledge and agree that this section 7 is reasonable and an essential element of this Agreement and that, in its absence, the economic terms of this Agreement would be substantially different.
- Limitation of Liability. In no event shall Zambooie, its suppliers, or service providers, or their officers, directors, employees, contractors or agents be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with the software, the additional software, the services or this Agreement (however arising, including negligence). Zambooie's, its suppliers', and service providers' cumulative liability, and the liability of their officers, directors, employees, contractors and agents to you or any third parties in any circumstance is limited to the greater of (a) the amount of fees you pay to Zambooie for (i) the software license and (ii) the services in the one (1) month immediately preceding the month in which the action giving rise to the liability first arose, or (b) one hundred U.S. dollars (U.S. $100). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
- Indemnity. You agree to indemnify and hold Zambooie, its suppliers, and service providers, and their officers, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) any breach of the covenants in Section 5.1 of this Agreement, (b) any content provided by You or generated by users of Your Store, (c) any claims arising from the sale or license of goods or services in Your Store, or (d) any breach of this Agreement or the documents it incorporates by reference. Zambooie's, its suppliers' and service providers' indemnity rights shall not be limited or offset by any contributory negligence by Zambooie.
- Customer Data, Your Data & Privacy Policy. As between Zambooie and You, You shall own all data disclosed by or collected about (a) an individual or entity that accesses Your Store to browse or shop ("Customer Data"), and (b) You ("Your Data"). Zambooie does not sell or rent Your Data to third parties for marketing purposes without Your consent, and Zambooie only uses and discloses Your Data as described in the Privacy Policy, which is incorporated herein by reference and as it may be amended from time to time. If You object to Customer Data or Your Data being collected, stored or processed in this way, you should not use the Software or Services.
You shall maintain all Customer Data that is collected by or disclosed to You in trust and confidence and use and disclose such information solely in accordance with Your privacy policy. You must display, maintain and adhere to Your privacy policy that informs Your Store customers what Customer Data is collected, how it is used, the effective date of Your privacy policy and how customers of Your Stores can learn of changes to Your privacy policy via the FAQ section of Your Store. In addition, You must prominently include within Your posted privacy policy a statement notifying Your customers that Your Store is hosted by Zambooie and that Zambooie has access to aggregated information about customers of Your Store in order for Zambooie to analyze performance and make improvements to Zambooie products.
- Breach. Without limiting other remedies, Zambooie may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your Account or Your Store, in whole or in part, and refuse to provide some or all of the Software functionality or Services to You if: (a) You fail to pay any fees in accordance with Section 6 of this Agreement and the Fees Policy, incorporated herein by reference; (b) You breach the covenants in Section 5.1 of this Agreement; (c) You breach this Agreement or the documents it incorporates by reference in any other manner; (d) Zambooie is unable to verify or authenticate any information You provide to Zambooie; or (e) Zambooie believes that Your actions may cause financial loss or legal liability for You, Your Store customers, or Zambooie.
- Suspension and Termination.
- 12.1 Suspension. If you breach any provision of this Agreement, Zambooie unilaterally may suspend Your Account by deactivating any access by You or by Your customers to any information contained on the Zambooie Servers related to Your Account. Suspension shall specifically include the disabling of Your Store and/or any access to information or data related to Your Account. In the event of any such suspension You will be notified and given an opportunity to correct such breach. In the event that such breach is not corrected within ten (10) calendar days of the receipt of such notice, Your Account may be terminated under Section 12.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension. If Your Account is suspended, You shall nevertheless be responsible for fulfilling all orders placed with Your Store during the suspension period.
- 12.2 Termination. This Agreement and all of its terms shall remain in full force and effect until it is terminated in accordance with the terms of this Agreement. Zambooie may terminate this Agreement and Your Account (a) immediately as provided in this Agreement, or (b) after a period of suspension as set forth in Section 12.1 of this Agreement. You may terminate this Agreement via the ZamStores Site. Upon termination, Zambooie will deactivate Your and Your customers' access to any information contained on the Zambooie Servers related to Your Account. If Your Account is terminated, You shall nevertheless be responsible for fulfilling all orders placed with Your Store.
- 12.3 Rights Upon Termination. In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and You shall destroy all copies of the Software in Your possession, if any. Upon termination, there will be no refund provided to You except as set forth in the Fees Policy and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of Zambooie to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses cost or other costs of any kind under this Agreement.
- Use of Paypal. If you purchase a license to Software then You are required to use PayPal as the Payment Solution for Your Store. Using PayPal as a "Payment Solution" means that You use PayPal exclusively to process online payments from Your Store customers. In order to use PayPal with Your Store, You are required to sign up for a Business or Premier PayPal account and comply with the PayPal User Agreement and PayPal Privacy Policy.
- General.
- 14.1 Governing Law. This Agreement shall be governed in all respects by the laws of the State of Tennessee without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction.
- 14.2 Legal Compliance. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Software, the Services, and Your listing and sale of products and services on Your Store.
- 14.3 No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement between You and Zambooie.
- 14.4 Force Majeure. Except for the payment of any fees due and payable under this Agreement, neither party's delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
- 14.5 Disputes. In the event a dispute arises between You and Zambooie, Zambooie's goal is to provide You with a neutral and cost effective means of resolving the dispute quickly. Accordingly, You and Zambooie agree that any claim or controversy at law or equity that arises out of this Agreement, any other Zambooie policy or agreement referenced herein, the Software, or Services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, Zambooie strongly encourages You to first contact Zambooie directly as provided in Section 14.6 to seek a resolution and Zambooie will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
- a. Binding Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is no more than $25,000, You agree that the dispute shall be resolved through binding arbitration pursuant to the Supplementary Procedures for Online Arbitration ("Online Procedures"), conducted on-line and based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association ("AAA") in accordance with its applicable rules. Any judgment on the award rendered by the arbitrator may be entered in and/or enforced by any court having jurisdiction thereof.
- b. Court. Any Claim where the total amount of the award sought exceeds $25,000 may be adjudicated by a court of competent jurisdiction located in Davidson County, Tennessee, which you agree shall have exclusive jurisdiction over any Claim that is litigated. You and Zambooie agree to submit to the personal jurisdiction of the courts located within the county of Davidson County, Tennessee. Alternatively, any dispute where the total amount of the award sought exceeds $25,000 may be submitted for binding arbitration, administered by the American Arbitration Association ("AAA") in accordance with its applicable rules. Any judgment on the award rendered by the arbitrator may be entered in and/or enforced by any court having jurisdiction thereof. Any arbitration under Section 14.5(b) of this Agreement that is not resolved pursuant to the Online Procedures shall be held in Davidson County, Tennessee or another location mutually agreed upon by the parties. You waive all objections to venue in Davidson County, Tennessee, and agree not to dispute personal jurisdiction or venue in these courts.
- c. The first party to initiate a claim under Section 14.5(b) of this Agreement shall choose the forum. Should either party file an action contrary to Section 14.5 of this Agreement, the other party may recover attorneys' fees and costs up to $3000 to resolve the forum issue, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.
You agree that you will not bring or participate in any class action lawsuit against Zambooie or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
- 14.6 Notices. Except as explicitly stated otherwise, any notices shall be given as follows: (a) in the case of Zambooie, via certified mail to Zambooie, Attn: Legal Department, 1008 Old Tree Court, Nashville, Tennessee 37210, or (b) in the case of You, via the email address You provide to Zambooie during the registration process. Notice shall be deemed given twenty four (24) hours after the email is sent, unless Zambooie is notified that the email address is invalid. Alternatively, Zambooie may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided to Zambooie during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
- 14.7 Assignment. You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. You agree that this Agreement may be assigned by Zambooie, in Zambooie's sole discretion.
- 14.8 No Third Party Beneficiary. You acknowledge and agree that nothing herein, express or implied, is intended to, nor shall be construed to, confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
- 14.9 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Zambooie's failure to act with respect to a breach by You or others does not waive Zambooie's right to act with respect to subsequent or similar breaches.
- 14.10 Construction. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term "including" means "including without limitation," unless expressly stated to the contrary.
- 14.11 Survival. Sections 2.4 (Ownership), 6.1 (Fees) with respect to any outstanding fees owed for the Services, 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9 (Indemnity), 10 (Customer Data, Your Data, & Privacy Policy), 12.3 (Rights Upon Termination), and 14 (General) shall survive any termination or expiration of this Agreement.
- 14.12 Disclosures. The goods and services hereunder are offered by Zambooie, Inc.
- 14.13 Additional Terms. The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to the Services offered by Zambooie:
Acceptable Use Policy
Copyright Claims Policy
Fees Policy
Privacy Policy
Each of these policies may be amended from time to time and the amended policies shall be automatically effective after they are initially posted on the ZamStores Site. In addition, when using particular services on the ZamStores Site, You agree that You are subject to any posted policies or rules applicable to services You use through the ZamStores Site, which may be posted from time to time. All such posted policies or rules are hereby incorporated by reference into this Agreement.
- 14.14 Entire Agreement. This Agreement sets forth the entire understanding and agreement between You and Zambooie with respect to the subject matter hereof.
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