Important Information

ZOOMonkey

TERMS OF USE AGREEMENT

Last Revised: August 11, 2011

PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR SITES AND OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE OUR SITES OR OUR SERVICES.

IF YOU BECOME A ZooMonkey SUBSCRIBER AND PAY BY CREDIT OR DEBIT CARD, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR CERTAIN PERIODS OF TIME IF YOU DO NOT CANCEL PRIOR TO THE END OF THE TERM. SEE SECTIONS 13(c) AND (d) FOR MORE INFORMATION ON THE AUTOMATIC RENEWAL TERMS APPLICABLE TO SUBSCRIPTIONS.

ZooMonkey currently makes services available through our Sites, applications, which include mobile applications and applications available on social networking sites and other platforms, and our downloadable products (the Sites, the applications, the downloadable products and all services provided by ZooMonkey in connection therewith shall be referred to collectively as, the "Services"). ZooMonkey may offer additional services or products or modify or revise any of the Services at our discretion, and this Agreement will apply to all additional services or products and all modified or revised Services unless otherwise indicated. ZooMonkey also reserves the right to cease offering any of the Services. You agree that ZooMonkey shall not be liable to you or any third party for any modification, revision, suspension or discontinuance of any of the Services.

Your use of certain Services may be subject to additional terms and conditions, and such terms and conditions will be either listed in this Agreement, or will be presented or accessible to you by ZooMonkey when you sign up to use, or use, such Services ("Additional Terms"). All such Additional Terms are incorporated by reference into this Agreement unless otherwise indicated. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with ZooMonkey for products, services or otherwise.

All visitors to our Sites, whether registered or not, are "users" of the Services for purposes of this Agreement. If you register for the Services by creating an account, you become a "Member".

This Agreement and any policy or guideline of the Services may be modified by ZooMonkey in its sole discretion at any time, with or without notice. Any changes or modifications will be effective immediately upon posting the revisions to the Site, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Services after the posting of changes or modifications will constitute your acceptance of such changes or modifications; therefore, you should frequently review this Agreement and all applicable terms and policies to understand the terms that apply to your use of the Services. If you do not agree to the amended terms, you must stop using the Services.

1.

ELECTRONIC RECORDS

Because the Services are provided electronically, you must consent to ZooMonkey's providing important information electronically if you wish to use the Services. You consent to being provided with this Agreement, notices, disclosures, information, policies and other materials in electronic form (collectively "Electronic Records"), rather than in paper form. Your consent to receive Electronic Records applies to all notices, disclosures, documents, records or other materials of any kind that ZooMonkey may be required to provide to you.

Electronic Records will be provided on our Sites and Services or sent to the email address associated with your account. You may wish to print out all Electronic Records and keep them for your records. If you have any trouble printing out, downloading, and/or accessing any Electronic Records, you may contact us in writing at the address provided above. In order for you to access and retain Electronic Records sent by ZooMonkey, you must have the following hardware and software: a computer or other access device capable of reading html and text files, a modem or other means of accessing the Internet, a browser capable of accessing and displaying the ZooMonkey website and the ability to receive and read emails. To print the Electronic Records, you will also need a printer.

You may withdraw your consent to receive Electronic Records by contacting us in writing at the address provided above. However, the Services provided by ZooMonkey are only available if you agree to receive Electronic Records, and you understand that withdrawing such consent will result in your account being deactivated. You can obtain a paper copy of an Electronic Record by contacting us in writing at the address provided above, provided that ZooMonkey may charge a reasonable fee to cover the costs of printing and sending the requested Electronic Record.

2.

ELIGIBILITY

By accessing or using the Services, you represent and warrant that: (a) you are at least 18 years old; (b) you have never been convicted of a felony or any criminal offense characterized as a sexual offense and are not required to register as a sex offender with any government entity; (c) you have not previously been suspended or removed from the Services; (d) you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement; (e) you are not a competitor of ZooMonkey and are not using the Services for reasons that are in competition with ZooMonkey or other than for its intended purpose; and (f) you are not located in, under the control of, or a national or resident of any country which the United States has (i) embargoed, (ii) identified as a "Specially Designated National" or (iii) placed on the Commerce Department's Table of Deny Orders.

3.

USE OF THE SERVICES

You agree that you will only use the Services, including the posting of any content through the Services, in a manner consistent with this Agreement and any and all applicable local, state, national and international laws and regulations, including, but not limited to, United States export control laws. Use of the Services is void where prohibited.

a.

Member Account. You will only create one unique profile for use of the Services. You will not include any telephone numbers, street addresses, last names, URLs, multimedia, artworks downloaded from external sources, email addresses or any other contact information in your profile or in any other publicly viewable User Content (as defined in Section 4 below) or other communications made in connection with your use of the Services.

b.

Account Security. You understand that you are responsible for maintaining the confidentiality of the username and password of your account, and you are fully responsible for all activities that occur under your username and password, including the purchase of any of our Paid Services (as defined in Section 13 below). You agree (a) to immediately notify ZooMonkey if you suspect any unauthorized use of your username or password or any other breach of security, (b) to ensure that you exit from your account at the end of each session, (c) not to use the account, profile, username or password of any other user or Member and (d) to use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You acknowledge that ZooMonkey is not responsible for any loss or damage arising from the theft or misappropriation of your username or password.

c.

Exclusive Use. You will only use the Services for your sole, personal use and not in connection with any commercial endeavors. You will not authorize others to use the Services or otherwise attempt to transfer your right to use the Services to any other person or entity.

d.

Interactions with Other Users; Criminal Background Screenings. You assume all risk when using the Services, including but not limited to all risks associated with any online or offline interactions with others, including dating. There is no substitute for acting with caution when communicating with any stranger who wants to meet you. YOU ACKNOWLEDGE THAT, CURRENTLY, ZOOMONKEY DOES NOT ROUTINELY SCREEN ITS USERS, INQUIRE INTO THE BACKGROUND OF ITS USERS, ATTEMPT TO VERIFY INFORMATION PROVIDED BY ITS USERS OR CONDUCT CRIMINAL SCREENINGS OF ITS USERS. ZOOSK RESERVES THE RIGHT TO CONDUCT SUCH INQUIRIES OR SCREENINGS (INCLUDING THE SEARCH OF ANY SEX OFFENDER REGISTRIES), HOWEVER, IN ITS SOLE DISCRETION. ZooMonkey does not make any representations, warranties or guarantees as to the conduct of its users or their compatibility with you. You acknowledge that not all users are available for matching and that ZooMonkey may create test profiles or accounts to monitor the operation of the Services.

You agree to take all necessary precautions when meeting other users, especially if you decide to meet in person. IN ADDITION, YOU AGREE TO REVIEW OUR ONLINE DATING SAFETY TIPS PRIOR TO USING THE SERVICES. These tips provide general advice aimed at engaging in safer dating practices, such as not providing your last name, home address, place of work, financial information (such as your credit card number or your bank account number) or other identifying information to other users and stopping all communications with anyone who pressures you for personal or financial information or attempts in any way to trick you into revealing it. You agree to treat all other users with dignity and respect and comply with our user conduct rules set forth in Section 3(f) below.

e.

No Commercial Solicitation or Advertising. You will not engage in any advertising or solicitation to buy or sell any products or services through the use of the Services and you will not transmit any chain letters, junk or spam email to other users. Additionally, you will not use any information obtained from the Services in order to contact, advertise to, solicit or sell to any user without their prior explicit consent.

f.

User Conduct. ZooMonkey is not responsible or liable in any manner for the conduct of its users, whether or not such conduct is in connection with the use of the Site or the Services. YOU ACKNOWLEDGE THAT YOU USE THE SERVICES AT YOUR OWN RISK. You agree not to do any of the following in connection with the Services or the Users thereof:

i.

use the Service in any unlawful manner or in a manner that is harmful to or violates the rights of others;

ii.

Engage in any harassing, intimidating, predatory or stalking conduct;

iii.

use the Services in any manner that could disrupt, damage, disable, overburden, impair or affect the performance of the Services or interfere with or attempt to interfere with any other user's use of the Services;

iv.

impersonate any person or entity, or misrepresent your age, identity, affiliation, connection or association with, any person or entity;

v.

make any commercial use of the Services or promote or solicit involvement in or support of a political platform, religion, cult, or sect;

vi.

defraud, swindle or deceive other users of the Services;

vii.

disseminate another person's personal information without his or her permission, or collect or solicit another person's personal information for commercial or unlawful purposes;

viii.

solicit or engage in gambling or any similar activity or any illegal or unlawful activity;

ix.

use any scripts, bots or other automated technology to scrape or access the Services;

x.

collect or solicit personal information about anyone under 18;

xi.

use the Service for any phishing, trolling or similar activities;

xii.

use the Service to redirect users to other sites or encourage users to visit other sites;

xiii.

harvest or collect email addresses or other contact information of other users from the Services by electronic or other means or use the Services to send, either directly or indirectly, any unsolicited bulk e-mail or communications, unsolicited commercial e-mail or communications or other spamming or spimming activities; or

xiv.

attempt to access any Services or area of the Sites that you are not authorized to access.

 

g.

Reporting Violations. If you wish to report any violation of this Agreement by others, including Members, you may do so by using the "Report Profile" button on the Services or by contacting us here.

h.

Verification and Enforcement. Although ZooMonkey does not routinely conduct criminal screenings of its users, you agree that ZooMonkey has the right to do so at its sole discretion, and you consent to such screening and agree to provide to ZooMonkey, upon request, complete, accurate and current information confirming your eligibility for use of the Services. You understand and agree that if ZooMonkey believes in its sole discretion that you have violated the terms of this Agreement, misused the Services or behaved in a way that could be regarded as inappropriate, unlawful, illegal or unsafe, ZooMonkey may among other things, investigate, take legal action against you and/or terminate your account and cancel your subscription and/or membership.

 

4.

USER CONTENT

a.

Responsibility for User Content. You are solely responsible for the content and information that you provide, publish, display or otherwise communicate to ZooMonkey through the Services or to other users (collectively referred to as "post"), including without limitation messages, data, text, photos, video, music, graphics, links or other materials posted through chat messages, community pages, email messages, mobile messages, photos and profile information (your submissions and those of other users, collectively, are "User Content"). ZooMonkey does not control, take responsibility for or assume liability for any User Content posted by you or any third party, or for any loss or damage thereto, nor is Zoosk liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you encounter. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES AND USE THEM AT YOUR OWN RISK.

b.

Accuracy of Information. You will not provide any inaccurate, misleading, incomplete or false information or User Content to ZooMonkey or to any other user. You agree that all photos posted to your profile are of you and were taken within the last 2 years and agree to update your profile accordingly. You may be required to supply certain information and post a photo of yourself to use the Services.

c.

No Duty to Review User Content. Although you understand and acknowledge that ZooMonkey has no duty to prescreen, review, control, monitor or edit the User Content posted by users and is not liable for User Content that is provided by others, you agree that ZooMonkey may, at its sole discretion, review, edit, refuse to accept or delete User Content at any time and for any reason or no reason without notice, and you are solely responsible for creating backup copies and replacing any User Content you post or store on the Services at your sole cost and expense.

d.

License of User Content to ZooMonkey claims no ownership or control over your User Content, except as otherwise specifically provided herein, on the Services or in a separate agreement. By submitting or posting User Content, you automatically grant, and you represent and warrant that you have the right to grant, to ZooMonkey, its affiliates, licensees and successors an irrevocable, perpetual, non-exclusive, fully paid, worldwide right and license to use, copy, publicly perform, publicly display, reproduce, adapt, modify and distribute such User Content furnished by you and to prepare derivative works of, or incorporate into other works, such information and User Content, and to grant and authorize sublicenses of the foregoing in any medium. You further represent and warrant that the User Content and the public posting and use of your User Content by ZooMonkey will not infringe or violate the rights of or cause any harm to any third party or violate the terms of this Agreement. By posting User Content, you hereby release ZooMonkey and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any additional compensation for any use of your User Content.

e.

Use of Proprietary Information of Others. You will not post, copy, transfer, create any derivative works from, distribute, reproduce or show in any manner any copyrighted or trademarked or proprietary information or materials, including any User Content posted by other users, without the prior consent of the owner of such proprietary rights. You acknowledge that information or materials available through the Services may have copyright protection whether or not it is identified as being copyrighted.

f.

Prohibited Content. You will not post or transport to any other user any User Content that is illegal or prohibited from being posted, which includes, but is not limited to, any User Content (or links to content) that ("Prohibited Content"):

i.

is obscene, pornographic, profane, defamatory, abusive, offensive, indecent, sexually oriented, threatening, harassing, inflammatory, inaccurate, fraudulent or illegal;

ii.

promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

iii.

is intended to, or does, harass, or intimidate any other user or third party;

iv.

may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, including User Content that contains others' copyrighted content (e.g., photos, images, music, movies, videos, etc.) without obtaining proper permission first;

v.

contains video, audio, photographs, or images of another person without his or her permission (or in the case of a minor, the minor's legal guardian) or otherwise violates anyone's right of privacy or publicity;

vi.

promotes or enables illegal or unlawful activities, such as instructions on how to make or buy illegal weapons or drugs;

vii.

violates someone's data privacy or data protection rights;

viii.

contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices;

ix.

contains any advertising, fundraising or promotional content; or

x.

is, in the sole judgment of ZooMonkey, objectionable or restricts or inhibits any person from using or enjoying the Services or exposes ZooMonkey or its users to harm or liability of any type.

 

g.

Submissions. Separate and apart from the User Content you provide as part of your use of the Services, you can submit questions, comments, feedback, suggestions, success stories, ideas, plans, notes, drawings, original or creative materials or other information about ZooMonkey and our Services (collectively, "Submissions"). Submissions, whether posted to the Services or provided to ZooMonkey by email or otherwise, are non-confidential and shall become the sole property of ZooMonkey. ZooMonkey shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

h.

Social Networking Sites. When you use the Services through a social networking site (a "Social Networking Site"), such as Facebook, where the Services are also referred to as an "application", you permit ZooMonkey to access certain information from your profile for that site. The information you permit ZooMonkey to access varies by Social Networking Site and is affected by the privacy settings you establish at such site. By using our Services through a Social Networking Site, you are authorizing ZooMonkey to collect, store, retain and use indefinitely, in accordance with our Privacy Policy, any and all information that you agreed the Social Networking Site could provide to ZooMonkey through the Social Networking Site application programming interface. Your agreement takes place when you "accept" or "allow" (or other similar terms) our application on a Social Networking Site. Additionally, you agree that any such information that ZooMOnkey currently has may be stored, retained and used indefinitely, in accordance with our Privacy Policy.

 

5.

PRIVACY

Please refer to our Privacy Policy for information about how ZooMonkey collects, uses and discloses personally identifiable information from its users. You understand and agree that if you post any content, information or material of a personal or private nature on any public areas of ZooMonkey or post or provide to ZooMonkey any information or content which is intended to be shared with other users, such content, information and materials will be shared with others accordingly, and you hereby consent to such sharing. You hereby consent to the processing of any personal data in the United States of America or any other country in which we process your data.

6.

COPYRIGHT AND LIMITED LICENSE

The Services contain the copyrighted material and other proprietary information of ZooMonkey and its licensors or users including without limitation, the ZooMonkey logo and all designs, text, graphics, pictures, video, information, data, software, sound files, other files and the selection and arrangement thereof (collective, "Proprietary Materials").

You are granted a limited, non-sublicensable license to access and use the Services and Proprietary Materials, subject to the terms and conditions of this Agreement. You agree that you will not (i) copy, modify, publish, adapt, sublicense, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Proprietary Materials or the Services or cause others to do so; (ii) "frame" or "mirror" any part of the Services, without our prior written authorization; (iii) use meta tags or code or other devices containing any reference to ZooMonkey or the Services in order to direct any person to any other website for any purpose; (iv) resell or make any commercial use of the Services; (v) use any data mining, robots, or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data or other content from the Services; (vi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services; (vii) use any automated methods or processes to create user accounts or (viii) use the Proprietary Materials or the Services other than for their intended purpose. Any use of the Services or Proprietary Materials other than as specifically authorized herein, without the prior written consent of ZooMonkey, is strictly prohibited and will violate and terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license is revocable at any time.

7.

REPEAT INFRINGER POLICY

ZooMonkey reserves the right to terminate, in appropriate circumstances and in its sole discretion, users who are deemed to be repeat infringers. ZooMonkey may also, in its sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

8.

COPYRIGHT POLICY

If you are a copyright owner or an agent thereof and believe that anything on the sites infringes upon your copyrights, you may submit a notification of infringement pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on our website (please include URLs to help us identify the material); (iv) your address, telephone number, and email address; (v) a written 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 (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. ZooMonkey designated Copyright Agent to receive notifications of claimed infringement is:

 

10.

HYPERLINKS

You are granted a limited, non-exclusive right to create a text hyperlink to the ZooMonkey websites for noncommercial purposes, provided such link does not portray ZooMOnkey or its Services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use ZooMonkey logo or proprietary graphics to link to any ZooMonk website without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any ZooMonkey trademark, logo or other proprietary information, including the images found in the Services, the content of any text or the layout/design of any page or form contained in the Services without ZooMonkey's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of ZooMonkey or any third party.

ZooMonkey makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Services. Such sites are not under the control of ZooMonkey and ZooMonkey is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. ZooMonkey provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by ZooMonkey of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services.

11.

THIRD PARTY CONTENT

ZooMonkey may provide third party content on the Services and may provide links to web pages and content of third parties (collectively the "Third Party Content") as a service to those interested in this information. ZooMonkey does not control, endorse or adopt any Third Party Content and makes no representations or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that ZooMonkey is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.

12.

ADVERTISERS AND OTHER THIRD PARTIES

The Services may contain advertisements and promotions from third parties or may otherwise provide information about or links to third party products or services. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. ZooMonkey is not responsible for, and does not endorse, any features, content, advertising, products, services or other materials on or available from third party sites. You agree that ZooMonkey shall not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of such dealings or as a result of the presence of such third party advertisers or third party information on the Services.

13.

PAID SERVICES

a.

General. If you purchase any Services that we offer for a fee, such as a subscription to our Services or virtual coins (the "Paid Services"), you authorize ZooMonkey and our designated payment processors to store your payment card information and other related information. You also agree to pay the applicable fees for the Paid Services (including without limitation periodic fees for ongoing subscriptions (the "Subscription Fees") as set forth on the Services) as they become due plus all related taxes (including without limitation sales and use taxes, duties or other governmental taxes or fees), and to reimburse us for all collection costs and interest for any overdue amounts. All fees and charges are nonrefundable and there are no refunds or credits for any partially used subscription periods except (i) as expressly set forth in this Agreement, (ii) as otherwise required by applicable law and (iii) at ZooMonkey sole and absolute discretion. Fees for the Paid Services may be payable in advance, in arrears, per usage or as otherwise described when you initially purchase the Paid Services. All prices for Paid Services are subject to change without notice.

b.

Payment Method. ZooMonkey may, from time to time, offer various payment methods, including without limitation payment by credit card, by debit card, by check, by certain mobile payment providers or by using PayPal. ZooMonkey charges you for Paid Services through the payment method you select when originally purchasing the Paid Services (the "Payment Method") and you agree to make payment using that Payment Method. Certain Payment Methods, such as credit cards and debit cards, may involve agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method (the "Payment Method Provider"). If we do not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from us. Your non-termination or continued use of the Paid Services reaffirms that we are authorized to charge your Payment Method.

c.

Automatic Renewal of Subscriptions. IF YOU PAY FOR A SUBSCRIPTION BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD IDENTIFIED ON OUR SERVICES AS INVOLVING AN AUTOMATICALLY RENEWING SUBSCRIPTION) AND YOU DO NOT CANCEL YOUR SUBSCRIPTION AS SET FORTH IN SECTION 13(d) BELOW PRIOR TO THE END OF THE TERM, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED AT THE END OF EACH TERM FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED (FOR EXAMPLE, UNLESS YOU CANCEL, A ONE MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW ON A MONTHLY BASIS AND A SIX MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW ON A SIX MONTH BASIS). UNLESS OTHERWISE INDICATED IN ANY APPLICABLE ADDITIONAL TERMS, SUCH RENEWAL WILL BE AT THE SAME SUBSCRIPTION FEE AS WHEN YOU FIRST SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS WE NOTIFY YOU AT LEAST 10 DAYS PRIOR TO THE END OF YOUR CURRENT TERM THAT THE SUBSCRIPTION FEE WILL INCREASE. YOU ACKNOWLEDGE AND AGREE THAT YOUR PAYMENT METHOD WILL BE AUTOMATICALLY CHARGED FOR SUCH SUBSCRIPTION FEES, PLUS ANY APPLICABLE TAXES, UPON EACH SUCH AUTO RENEWAL. YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION IS SUBJECT TO AUTOMATIC RENEWALS AND YOU CONSENT TO AND ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES TO YOUR CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM YOU AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. YOU FURTHER ACKNOWLEDGE THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE TAX RATES CHANGE OR IF YOU ARE NOTIFIED THAT THERE WILL BE AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.

d.

Cancellation of Subscriptions. TO CHANGE OR CANCEL YOUR SUBSCRIPTION AT ANY TIME, OTHER THAN PURSUANT TO SECTION 21, GO TO THE "SETTINGS" PAGE OF YOUR ACCOUNT, CLICK ON " SUBSCRIPTION" AND FOLLOW THE INSTRUCTIONS. IF YOU CANCEL YOUR SUBSCRIPTION, OTHER THAN PURSUANT TO SECTION 21, YOUR SUBSCRIPTION BENEFITS WILL CONTINUE UNTIL THE END OF YOUR THEN CURRENT SUBSCRIPTION TERM, BUT YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER THAT TERM EXPIRES. YOU WILL NOT BE ENTITLED TO A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR THE THEN CURRENT SUBSCRIPTION TERM, EXCEPT AS PROVIDED IN SECTION 21 OF THIS AGREEMENT OR AS REQUIRED BY APPLICABLE LAW.

FOR USERS IN THE EUROPEAN ECONOMIC AREA, YOU AGREE THAT ONCE YOU COMPLETE YOUR SUBSCRIPTION PURCHASE BY CLICKING ON "CONFIRM" OR "PURCHASE" (OR A SIMILAR BUTTON), WE WILL BEGIN TO PROVIDE YOU WITH THE SERVICES. YOU AGREE THAT YOU DO NOT HAVE A RIGHT TO CANCEL THIS CONTRACT UNDER THE DISTANCE SELLING DIRECTIVE (OR SIMILAR LEGISLATION). OUR TERMS OF USE AGREEMENT WILL BE AVAILABLE ON WWW.ZOOMonkey.com DURING THE DURATION OF THE CONTRACT.

e.

Current Information Required. You agree to provide current, complete and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) as necessary for the processing of all payments that are due to ZooMonkey. You agree to promptly notify ZooMonkey if your Payment Method is canceled (for example, due to loss or theft) or if you become aware of a potential breach of security related to your Payment Method. If you fail to provide any of the foregoing information, you acknowledge that your current Payment Method may continue to be charged for Paid Services and you remain responsible for all such charges.

f.

Change in Amount Authorized. If the amount to be charged varies from the amount you authorized when purchasing any Paid Services (other than due to the imposition or change in the amount of taxes, including without limitation sales and use taxes, duties or other governmental taxes or fees), ZooMonkey will provide notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. You agree that ZooMonkey may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

g.

Virtual Currency and Virtual Products. Please see our Virtual Goods and Currency Terms of Use for additional terms applicable to the purchase and use of virtual currency and virtual products offered by us. Any virtual currency you receive as a promotion from us will be subject to the terms of our Virtual Goods and Currency Terms of Use.

h.

Incorrect Payments and Errors. In the event that you submit to us a payment for Paid Services that does not match the price for the Paid Services you selected, ZooMonkey shall have the right, in its sole and absolute discretion, to (1) return or refund all or some of the amount of your payment, (2) apply all or some of your payment amount to other similar Paid Services that have a purchase price less than the amount of your payment, (3) apply all or some of the amount of your payment to the purchase of our virtual currency or (4) apply your payment in any combination of the foregoing ways. Please see our Virtual Goods and Currency Terms of Use for details regarding the terms applicable to the purchase and use of virtual currency and virtual products offered by us.

ZooMonkey reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.

 

16.

FREE TRIALS AND PROMOTIONS.

From time to time, we may offer free trials or other promotions (a "Promotion"). As an example, we may offer promotions that provide free subscriber-level access to the Services for a certain period of time. YOU MUST CANCEL YOUR SUBSCRIPTION (IN ACCORDANCE WITH SECTION 13(d) ABOVE) BEFORE THE END OF THE PROMOTION PERIOD IN ORDER TO AVOID BEING AUTOMATICALLY CHARGED FOR SUBSCRIPTION FEES. As another example, we may provide you with our virtual currency without charge. Any such virtual currency is subject to the terms of our Virtual Goods and Currency Terms of Use. Additional Terms applicable to any Promotions may be provided.

17.

DISCLAIMERS

ZOOMonkey PROVIDES THE SITES, THE PROPRIETARY MATERIALS AND THE SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES (INCLUDING ALL PROPRIETARY MATERIALS AND OTHER INFORMATION AND CONTENT CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

ZOOMonkey DOES NOT REPRESENT AND WARRANT THAT (A)YOUR USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, COMPLETE, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, (B)ANY DEFECTS IN THE SERVICES WILL BE CORRECTED OR (C)THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ZOOMonkey DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICES OR THE DELIVERY OF ANY MESSAGES.

ZOOMonkey DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF OR SCREEN THE PERSONS SUBSCRIBING TO OR USING THE SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF THE SERVICES BY OTHER USERS OF THE COMMUNITY. THEREFORE, ZOOMonkey DISCLAIMS ALL LIABILITY FOR YOUR INTERACTIONS WITH AND THE CONDUCT OF OTHER USERS AND FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.

ZOOMonkey DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION ON THE SERVICES, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY OR LIABILITY FOR THE CONDUCT OF ANY USERS OR MEMBERS OF THE SERVICES OR FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN ZOOMonkey. UNDER NO CIRCUMSTANCES WILL ZOOMonkey BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR HARM OF ANY KIND RESULTING FROM ANY USER CONDUCT OR FROM ANYONE'S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES, OR TRANSMITTED TO OR BY ANY USERS.

SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.

18.

LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ZOOMonkey, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING DIRECT, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, OR THE PROPRIETARY MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM ZOoMonkey, OR THAT RESULTS 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 ZOOMonkey's RECORDS, PROGRAMS OR SERVICES. UNDER NO CIRCUMSTANCES WILL ZOOMonkey's AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES, EXCEED THE GREATER OF (1) THE AGGREGATE AMOUNT OF FEES FOR PAID SERVICES PAID BY YOU DURING THE IMMEDIATELY PRECEDING SIX MONTHS AND (2) $50.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ZOOMonkey BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF OR THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, IDENTITY THEFT AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS, MEETINGS OR OTHER INTERACTIONS WITH OTHER USERS OF THE SERVICES. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.

SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.

19.

DISPUTES AND INDEMNIFICATION

a.

Disputes. Our goal is to resolve any disputes amicably and quickly and we encourage you to contact us and explain your complaint prior to initiating any legal action. You agree that any dispute arising from this Agreement or about or involving the Services will by governed by the laws of the State of California (USA), without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. You and ZooMonkey agree to submit to the sole and exclusive jurisdiction of, and agree that venue is proper in, the state courts located in San Francisco, California (USA) and the federal courts located in the Northern District of California (USA) in such legal action or proceeding.

b.

Indemnity. You agree to defend, indemnify and hold ZooMonkey, its subsidiaries and affiliates, and each of their directors, officers, managers, agents, contractors, partners and employees harmless from any loss, liability, claim, damages, costs, expenses or demand, including reasonable attorney's fees, due to or arising out of (i) your use of or inability to use the Services, (ii) any User Content or Submission you provide or transmit through the Services, (iii)your conduct in connection with the Services or our users, (iv)your violation of any of the terms of this Agreement, (v) your violation of any rights of a third party or (vi) your violation of any applicable laws, rules or regulations.

 

20.

MISCELLANEOUS

You agree that this Agreement, together with the Additional Terms, contains the entire agreement between you and ZooMonkey regarding the use of the Services and supersedes all prior agreements and understandings (including without limitation any prior versions of this Agreement), except to the extent that the parties have entered into a separate written agreement applicable to the Services that expressly governs over this Agreement. If any provision of this Agreement is held illegal, void, invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of ZooMonkey to exercise or enforce any right or provision in this Agreement shall not operate as a waiver of such right or provision. Other than any entities that ZooMonkey owns a 50% or greater interest in, there are no third-party beneficiaries to this Agreement and no third party who is not a party to this Agreement shall have any right to enforce any term of this Agreement.

21.

LANGUAGE OF THE AGREEMENT

The language of this Agreement is English. Where ZooMonkey has provided a translation of the English version of this Agreement, you agree that the translation is provided for your convenience only and that the English language version of this Agreement will govern your relationship with ZooMonkey. If there is any contradiction between what the English language version of this Agreement says and what a translation says, then the English language version will take precedence.

 

 

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