Terms of Service

Last Updated: 6/30/2015

 

Thank you for your interest in this application for your mobile device (the “App”) provided to you by Zuli, Inc. (“Zuli”, “us”, or “we”), our web site at www.zuli.io (the “Site”), as well as all related web sites, networks, downloadable software, and other services provided by us and on which a link to this End User License Agreement and Terms of Service is displayed (collectively, together with the App and Site, our “Service”). The Service is intended to be used in conjunction with Zuli Smartplugs and other Zuli hardware products (the “Hardware”). This End User License Agreement and Terms of Service (this “EULA” or “Agreement”), including the Zuli Privacy Policy (www.zuli.io/privacy-policy) and the Zuli Smartplug User Guide and Technical Specifications (the “Specifications”) are incorporated herein by reference and govern your use of the Service. Your use of any Hardware is governed by the Specifications and any applicable Hardware Warranty provided by Zuli and available at www.zuli.io/warranty. This EULA is a legally binding contract between you and Zuli regarding your use of the Service. You may request a copy of this EULA by emailing us at support@zuli.io

 

BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, YOU SHOULD IMMEDIATELY CEASE ACCESSING OR USING THE SERVICE.

 

As provided in greater detail in this EULA (and without limiting the express language of the EULA below), you agree and acknowledge that the EULA includes, the following material terms:

 

1. The App is licensed, not sold to you, and you may use the Service only as set forth in this EULA;

 

2. Your use of the Service may be subject to separate third party terms of service and fees, including without limitation your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;

 

3. You consent to the collection and use of your personally identifiable information in accordance with Zuli’s Privacy Policy (www.zuli.io/privacy-policy), including without limitation the collection of your location information;

 

4. Access to certain features of the Service may require access to information about the location of your device, such as GPS coordinates;

 

5. SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE SERVICE, ESPECIALLY IN CONNECTION WITH SAFETY AND CRITICAL USES. PLEASE READ THIS SECTION CAREFULLY;

 

6. Disputes arising hereunder will be resolved by binding arbitration, and BY ACCEPTING THIS EULA, YOU AND ZULI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this EULA (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Section below for the details regarding your agreement to arbitrate any disputes with Zuli;

 

7. The App requires access to the following services on your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, Bluetooth, audio and microphone access, internet and data services; and

 

8. If you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.

 

Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to this EULA, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to this EULA and you agree to be bound by this EULA on behalf of such organization.

 

Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, email address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@zuli.io. To the extent that you allow other users to link to your Zuli account, you are responsible for their use of the Service in connection with your Hardware. You agree to only link to another user’s Hardware if you have obtained permission from that user.

 

Payment. Ordering of Hardware and access to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Zuli may change the fees for the Hardware, Service or any feature of the Service, including by adding fees, on a going-forward basis at any time. Zuli will charge the payment method you specify at the time of purchase. You authorize Zuli and its designated payment processors to charge all sums as described in these Terms, for the Service or Hardware you select, to that payment method. If you pay any fees with a credit card, Zuli and its designated payment processors may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

 

Scope of License. The App is licensed, not sold, to you for use only under the terms of this license. Zuli reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with the terms and conditions of this EULA, Zuli hereby grants you a personal, limited, revocable, non-transferable license to use the App on a single compatible device that you own or control, solely for your own use and solely for the purpose of controlling the Hardware in accordance with the Specifications. You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or third party terms), nor attempt to disable or circumvent any security or other technological measure designed to protect the App or any content available through the App. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. The terms of this EULA will govern any updates provided to you by Zuli that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

 

Third Party Services and Linked Websites. Zuli may provide tools through the Service that enable you to export information to third party services, including through features that allow you to link your account on Zuli with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under our control, and we are not responsible for their content.

 

Third Party Materials.

A. Certain portions of the Service may include, display, or make available content, data, information, applications or materials from third parties (“Third Party Materials”). You understand that by using the Service, you may encounter Third Party Materials and other content, such as third party advertisements and promotional content, or content and communications provided by Zuli (collectively, “Content”), that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that may automatically and unintentionally contain links or references to objectionable material. Nevertheless, you agree to use the Service at your sole risk and that Zuli shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable, or that is inaccurate, incomplete, untimely, invalid, illegal, indecency, of poor quality or otherwise.

 

B. In addition, third party services, Content and Third Party Materials that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. Zuli makes no representation that such services, content, and materials are appropriate or available for use in any particular location. To the extent you choose to access such services, content or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.

 

Your Use of the Service and the Content.

 

Your rights to use the Service are expressly conditioned on the following:

 

A. You agree and understand that the Service, including any Content therein, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;

 

B. Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service, and you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service without prior written authorization;

 

C. You agree not to bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;

 

D. You agree not to perform any fraudulent activity, including impersonating any person or entity, or accessing any other Service account without permission;

 

E. You agree not to decipher, reverse engineer, decompile or disassemble the Service or the Content, or the software used to provide the Service or the Content, in whole or in part, or authorize, direct, or cause a third party to do so;

 

F. You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service or the Content, or any portion thereof, unless and solely to the extent Zuli makes available the means for embedding any part of the Service or the Content;

 

G. You agree not to access, tamper with, or use non-public areas of the Service, Zuli’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Zuli’s providers;

 

H. You agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Zuli is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Service;

 

I. You agree that your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms; and

 

J. You agree not to do any of the acts described in this Section 7, or to assist, encourage, or permit any person in engaging in any of the acts described in this Section 7.

 

Location Based Services. Some of the features of the Service enable Zuli to tailor your experience based on your location (“Location-based Services”), such as to control the Hardware based on your location. In order to use certain Location-based Services, you must allow Zuli access to your localized position through your device, which Zuli may accomplish through a variety of means, including GPS location, Bluetooth, iBeacon, GeoIP, or other available mechanisms. If you choose to disable Location-based Services on your device or to the App, you will not be able to utilize certain features of the Service. By authorizing Zuli to access your location or media files containing location based meta data, you agree and acknowledge that (i) location data we collect from you is directly relevant to your use of the Service and (ii) Zuli may, for so long as you allow Zuli to access such location data or meta data, provide Location-based Services related to your then-current location. PLEASE NOTE THAT LOCATION DATA MAY NOT BE ACCURATE, WHETHER COLLECTED ORIGINALLY BY THE APP OR A THIRD PARTY APPLICATION ORIGINATING A PIECE OF MEDIA CONTENT, AND ZULI DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION DATA AND LOCATION-BASED SERVICES.

 

System Requirements and Limitation on Use

 

A. System Requirements. You acknowledge that the Service will not be fully accessible or functional without: (i) a working Wi-Fi network or cellular connection that is positioned to communicate reliably with the Hardware; (ii) a Zuli account; (iii) a mobile device such as a supported phone or tablet; and (iv) other system elements or specifications that may be specified by Zuli. It is your responsibility to ensure that you have all required system elements.

 

B. Intended Use of Hardware. The Service is intended to be used in connection with the Hardware as set forth in the Specifications. Please refer to Specifications for detailed information on the intended use of Service in connection with the Hardware.

 

C. Outages. While we aim for the Service to be highly reliable and available, the Service is subject to interruptions and failures for a variety of reasons beyond Zuli’s control, including power outages, Wi-Fi intermittency and service provider uptime, among others. You acknowledge these limitations and agree that Zuli is not responsible for any damages allegedly caused by the failure or delay of the Service due to such reasons beyond Zuli’s control.

 

D. No Life-Safety or Critical Uses of the Service. You acknowledge and agree that the Service is not certified for use with any emergency response or healthcare related electronics or products. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICE FOR ANY LIFE SAFETY OR CRITICAL PURPOSES.

 

E. Energy Savings. Zuli does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Service, any feature of the Service, or the Hardware. Actual energy savings and monetary benefits vary with factors beyond Zuli’s control. Zuli may use the Service to provide you with information tailored to your energy usage and suggestions on how to save money on energy bills. You acknowledge that such information and suggestions are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from Zuli if your savings differ.

 

Consent to Use of Data. You agree that Zuli may collect and use technical data and related information, including but not limited to UDID and other technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Service, and to anonymously track and report your activity inside of the Service, including for analytics purposes. If you are located outside of the United States, you expressly consent to the transfer and processing of your data outside your home jurisdiction. Please see Zuli’s Privacy Policy, www.zuli.io/privacy-policy for more information regarding information Zuli collects, and how it uses and discloses that information.

 

Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Zuli or our employees any ideas for products, services, features, modifications, enhancements, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, computer code, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Zuli, you agree that:

 

A. Zuli has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;

 

B. Feedback is provided on a non-confidential basis, and Zuli is not under any obligation to keep any Feedback you send confidential or to refrain from using it in any way; and

 

C. You irrevocably grant Zuli and its successors and assigns perpetual and unlimited permission to use, reproduce, modify, and distribute, display, and perform Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback whether in whole or in part, and whether as provided or as modified.

 

Ownership. The Service, and the media and materials contained therein, including all intellectual property rights therein, are the sole and exclusive property of Zuli and its licensors. Except for the limited license expressly granted by and to you under this EULA, no other rights, licenses, or immunities are granted or shall be deemed to be granted under this EULA, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by Zuli hereunder are expressly reserved.

 

Termination. The EULA is effective until terminated by you or Zuli. Your rights under this license will terminate automatically without notice from Zuli if you fail to comply with any term(s) of this EULA (including by violating any license restriction provided herein). In addition, Zuli may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate this EULA at any time by uninstalling the App and ceasing use of the Service. Upon any termination of the EULA, you must immediately cease all use of the Service, and destroy all copies, full or partial, of the App. If you transfer Hardware to a new owner, your right to use the Service with respect to such Hardware automatically terminates, and the new owner will have no right to use the Service under your account and will need to register for a separate account with Zuli.

 

Indemnity. You agree to defend, indemnify, and hold Zuli, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (i) your access, use, or misuse of the Service, Hardware or the Content, or (ii) your violation of this EULA.

 

Hardware Warranty. If you have purchased any Hardware, such hardware may be subject to a limited warranty. Please visit www.zuli.io/warranty for more information.

 

NO SERVICE WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE, INCLUDING YOUR RELIANCE ON ANY ANNOUNCEMENT THAT IS TRANSMITTED OR RECEIVED ON OR THROUGH THE SERVICE, IS AT YOUR SOLE RISK. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, INCLUDING ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND ZULI HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ZULI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.

 

LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ZULI OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF ZULI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ZULI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.

 

THIRD PARTY DISPUTES. ZULI IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, PUBLIC UTILITY, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, PUBLIC UTILITY, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE ZULI SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE ZULI (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

 

Dispute Resolution. In the interest of resolving disputes between you and Zuli in the most expedient and cost effective manner, you and Zuli agree that any and all disputes arising in connection with this EULA shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this EULA. You understand and agree that, by entering into this EULA, you and Zuli are each waiving the right to a trial by jury or to participate in a class action.

 

Exceptions. Notwithstanding the paragraph above, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) file suit in a court of law to address intellectual property infringement claims.

 

Arbitrator. Any arbitration between you and Zuli will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.

 

Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by email (“Notice”). Zuli’s address for Notice is: Zuli, Inc., 461 2nd Street, Suite 207, San Francisco, CA 94107. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Zuli may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Zuli shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Zuli shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Zuli in settlement of the dispute prior to the arbitrator’s award.

 

A. Fees. In the event that you commence arbitration in accordance with this EULA, Zuli will reimburse you for your payment of the filing fee, unless your claim is for greater than $5,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco County, California provided that if the claim is for $5,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Zuli for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

 

B. No Class Actions. YOU AND ZULI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Zuli agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

 

C. Modifications. In the event that Zuli makes any future change to this arbitration provision (other than a change to the Zuli’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Zuli’s address for Notice, in which case your account with Zuli shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.

 

D. Enforceability. If only Subsection (e) of this Section or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in the “Governing Law” Section, below, shall govern any action arising out of or related to this EULA.

 

Governing Law. The laws of the State of California, excluding its conflicts of law rules, govern this license and your use of the Service. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and you hereby irrevocably submit to personal jurisdiction in such courts.

 

International Use. The Service is controlled and operated from within the United States. Zuli makes no representation that the Service is appropriate or available in locations outside the United States. Those who choose to access the Service from other locations are responsible for compliance with applicable laws. International users must comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data form the United States or your country of residence.

 

Modification of this EULA. We reserve the right, at our discretion, to modify this EULA on a going-forward basis at any time, with or without prior notice, and such changes will be effective in accordance with the following. In the case of material changes to this EULA, Zuli will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism. The modifications to the EULA will be effective upon the earlier of (i) your first use of the Service with notice of such change, or (ii) 30 days from posting of such change. Your use of the Service following the date that any such change becomes effective constitutes your agreement to be bound by the modified EULA. If you do not agree to the modified EULA, your sole and exclusive remedy is to terminate your account and you may no longer use the Service. Disputes arising under this EULA will be resolved in accordance with the version of the EULA that was in effect at the time the dispute arose.

 

General. This EULA, together with the Zuli Privacy Policy (www.zuli.io/privacy-policy) and any other applicable policies and guidelines, are the entire and exclusive understanding and agreement between you and Zuli regarding your use of the Service. Except as expressly permitted above, this EULA may be amended only by a written agreement signed by authorized representatives of all parties to this EULA. You may not assign or transfer this EULA or your rights under this EULA, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this EULA at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this EULA, or any provision hereof, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this EULA is for convenience only and will not have any impact on the interpretation of any provision. If any part of this EULA is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of this EULA, any provision that by its nature or express terms should survive, will survive, including Section 1 and Sections 3 through 24.

 

Tax. State sales tax is collected on product delivered in CA, UT, MN and NY and district tax is collected on product delivered in San Francisco, and in zip codes 95020, 84070, 55416 and 10012 (collectively “District Sales Tax Locations”). If the property is being delivered to CA, UT, MN and NY, but outside the District Sales Tax Locations, purchaser understands that Zuli, Inc. treats this sale of the above described tangible personal property as exempt from the use tax imposed by the local delivery district. If the property is principally stored, used, or otherwise consumed in that district, the purchaser shall be liable for and pay the use tax. Upon acceptance of this merchandise, purchaser also accepts liability and responsibility for remittance of any additional applicable district use taxes, or all applicable sales or use tax for product delivered outside of CA, UT, MN and NY.

 

Contacting Zuli. You can contact Zuli, Inc. by email at support@Zuli.io, or by U.S. post at

 

Zuli, Inc.
461 2nd Street, Suite 207
San Francisco, CA 94107.
Obtaining a Copy of this EULA. You may have this EULA mailed to you electronically by sending a letter to the address in Section 24 with your email and a request for a copy of this EULA.

 

Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

 

NOTICE REGARDING APPLE.  To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 27.  You acknowledge that these Terms are between you and Zuli only, not with Apple, and Apple is not responsible for the Service and the content thereof.  Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.  In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.  Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the mobile application infringe that third party’s intellectual property rights.  You agree to comply with any applicable third party terms when using the Service.  Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of this EULA Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.  You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

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