TERMS & CONDITIONS
Last Updated: 13th February, 2019
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF OUR WEBSITE AND OUR APPLICATIONS CAREFULLY.
1. SCOPE OF TERMS & CONDITIONS
Unless otherwise indicated, these Terms and Conditions of Use ("Terms & Conditions") apply to (i) your use of and/or access to the 9zest.com website and/or other websites (collectively, "Website") which are owned or operated by 4DxFitness, Inc. and/or its affiliates (collectively, “9zest”, "4DxFitness", "we," "us," or "our"), including any portions thereof available only to subscribers, and (ii) your use of and/or access to the applications which we may own or operate currently or in the future (collectively, the "Applications"). For purposes of these Terms & Conditions, "affiliates" shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, 9zest. The term "Applications" shall refer to both the Free Service and Premium Services (hereinafter defined).
3. TERMS & CONDITIONS - IN GENERAL
9zest provides its users (including Members and Coaches) a platform through its Website and Applications, to connect with trainers, coaches, teachers, professionals and other specialists (“Coach” or “Coaches”), users seeking fitness/health related advice/help (“Member” or “Members”) and other contents provided as part of these services (collectively, "Services" or “9zest Services”). By using our Services or accessing our Websites or Applications, you agree to be legally bound and to abide by these Terms & Conditions, at the time of signing. If you do not comply with these Terms & Conditions at any time, we reserve the right, if applicable, to terminate your access to the Services (or any part thereof).
In our sole discretion and without prior notice or liability to you or any third-party, we may discontinue, modify or alter any aspect of the Services, including, but not limited to, (i) restricting the time of the Services availability, (ii) restricting the permissions to users, and (iii) restricting or terminating any user’s right to use the Services.
From time to time, we may, in our sole discretion, change, modify, supplement or remove portions of these Terms & Conditions ("Additional Terms"). Such Additional Terms may be (i) made by the posting of a new version and/or (ii) placed on the Website(or such other URL that 9zest, Inc. may provide from time to time) and/or Applications to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You will be deemed to have agreed to such Additional Terms by your decision to continue using any of the Services following the date on which such Additional Terms are posted. If you do not abide by the provisions of these Terms & Conditions, including Additional Terms, you agree that we may immediately deactivate or delete all related information and files pertaining to you and/or bar any further access to such information and/or files, or our Services. What constitutes a "material change" will be determined at our sole discretion, in good faith and using common sense and reasonable judgment.
Some of the content or the Services may not be appropriate for children. CHILDREN UNDER THE AGE OF 18 ARE NOT PERMITTED TO USE THE SERVICES WITHOUT PERMISSION OF GUARDIAN OR PARENT. If you are below the age of 18 or the applicable legal age in your jurisdiction, you can use the Services only in conjunction with, and under the supervision of, your parent or guardian who has agreed to the Terms & Conditions. If you are under the age of 18, you may not use the Services, in compliance with the Children’s Online Privacy Protection Act. If you are the parent or legal guardian of a child under the age of 18, you may use the Services on behalf of such minor child. By using the Services on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child. If you do not qualify under these Terms & Conditions, do not use the Services.
Use of the Services is void where prohibited by applicable law, and the right to access the Services is revoked in such jurisdictions. By using the Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms & Conditions and to abide by all of the Terms & Conditions set forth herein. We reserve the right to refuse service to anyone for any reason at any time.
4. LIMITED LICENSE
Subject to your continued compliance with the Terms & Conditions, including without limitation the timely payment of all applicable fees, we grant you a non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access, use, display, publish, and process information and content that you provide through our Services. Your use is limited for your personal, non-commercial purpose only.
5. ACCESS AND USE OF THE APPLICATIONS
You may access the Applications which can be downloaded from an applications store or applications distribution platform, such as the Apple Applications Store or Google Play, (the "Applications Provider"). You acknowledge and agree that:
- these Terms & Conditions are concluded between us, and not with the Applications Provider, and that we are solely responsible for the Applications (not the Applications Provider).
- the Applications Provider has no obligation to furnish any maintenance and support services with respect to the Applications.
- in the event of any failure of the Applications to conform to any applicable warranty, (i) you may notify the Applications Provider and the Applications Provider may refund the purchase price for the Applications to you (if applicable), (ii) to the maximum extent permitted by applicable law, the Applications Provider will have no other warranty or obligation whatsoever with respect to the Applications, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be your responsibility.
- the Applications Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Applications or your possession and use of the Applications, including, but not limited to: (i) product liability claims; (ii) any claim that the Applications fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- in the event of any third party claim that the Applications or your possession and use of that Applications infringes that third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms & Conditions.
- the Applications Provider, and its subsidiaries, are third party beneficiaries of these Terms & Conditions as it relates to your license of the Applications, and that, upon your acceptance of these Terms & Conditions, the Applications Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms & Conditions as related to your license of the Applications against you as a third party beneficiary thereof.
- you must also comply with all applicable third party terms of service when using the Services.
6. FEES; BECOMING A PREMIUM SERVICE USER
Our Services consist of a free, limited version Application ("Basic Service") and premium products with differing functionality based on the subscription level ("Premium Service"). Premium Service typically requires a fee, which is typically paid by the user ("Non-Business Premium Service") or by a third party on behalf of the user ("Business Premium Service"). You do not have to become a Premium Service user to use the Services. However, if you are not a Premium Service user, you may be precluded from using certain portions, components, content, features, or resources of our Services. We reserve the right to eliminate or modify any or all of the functionality of the Free Service at any time without any prior notice to you.
Whether or not you use the Free Service or the Premium Service, you are responsible for all charges and fees associated with connecting to and using the Services, including without limitation all telephone access lines (including mobile data and data roaming charges, when applicable), telephone and/or internet service provider fees, telephone and computer equipment, taxes and any other fees and charges necessary to access our Services.
Your Premium Service may start with a free trial. Free trials are for new users. 9zest reserves the right, in its absolute discretion, to determine your free trial eligibility. Subscription fees will begin at the end of the free trial period unless you cancel prior to the end of the free trial period.
7. CHARGES AND FEES FOR PREMIUM SERVICE USERS
If you are a subscriber to our Premium Service, you further agree as follows:
- Non-Business Premium Service: If you are a Non-Business Premium Service User, you will be responsible for the fixed and periodic charges and fees (including prepayment plan fees for multiple periods or recurring fees) set forth on our Website and/or Applications, a applicable taxes, and other charges and fees incurred in order to access the Premium Services.
- Business Premium Service: Business Premium Services are generally purchased by our third party commercial partners ("9zest Partners") for a specific period, and 9zest Partner generally provides you with a unique activation code that allows you to access certain Premium Service features purchased by such 9zest Partner. In such instance, your subscription has been fully or partially paid for by our 9zest Partner, and you will be able to use Business Premium Service features until the expiration of a set term agreed between 9zest and such 9zest Partner. 9zest Partner agrees to make the part payment for Services to 9zest, you will be responsible for the remaining payment as mutually agreed between 9zest and such 9zest Partner at the time of subscription.
- Right to alter premium: We reserve the right to increase charges and fees, or to institute new charges or fees at any time, upon reasonable advance notice communicated to you through a posting on the Website and/or Applications or such other means as we may deem appropriate from time to time (including electronic or conventional mail).
- Renewal Charge; Automatic Renewal: The renewal charge will generally be the same as the prior period’s charge, unless we notify you in advance at the time of sign up or prior to the beginning of the renewal period as described above. If (i) you have purchased a multiple-period prepayment plan or (ii) you were eligible for a discounted rate but are no longer eligible for that rate, then you will be offered to renew your subscription at our standard subscription rates at the start of the renewal period. The subscription will be automatically renewed and the user will be charged in advance for the next renewal period.
- Cancellation of Non-Business Premium Service Subscription: Cancellations for our Premium Services can be requested through the original purchase point, the Apple App Store, the Google Play Store, or the 9zest website. Cancellation is subject to the purview of the original purchase point. All fees retained by us are non-refundable. Cancellation will be effective at the next subscription period and your subscription will remain active until the end of the current subscription period.
- Cancellation of Non-Business Membership based Premium Service Subscription: 9zest offers substantial discount on its services for 9zest members. The membership fees are not negotiable and not refundable.
- Subscription through 9zest Partners: For Business Premium Services users, the 9zest Partner paying for your Business Premium Service subscription controls such an account (which may be different from your personal account) and may terminate your access to it. Your use of the Service may be subject to additional terms and conditions of such 9zest Partner. You agree that we shall not be liable to you or any such third-party for any termination or cancellation of your access to, or use of, our Premium Services by such 9zest Partner. If you had Business Premium Service subscriptions paid through a 9zest Partner but you are no longer eligible to receive such benefit from such 9zest Partner, it is also possible that your Business Premium Service account will terminate with us, and you will have to sign up for a new account.
8. USER ACCOUNT AND SECURITY
In connection with your use of certain features of the Services, you will be required to complete a registration form. You represent and warrant that all user information you provide on the registration form or otherwise in connection with your use of the Services will be current, complete and accurate.
As a registered user of the Services, you are entirely responsible for maintaining the confidentiality of your user account information. You may not use the account or user name of any other user at any time. You must notify us immediately in the event of any known or suspected unauthorized use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your or anyone else’s user account information.
You are also entirely responsible for any and all activities which occur under your user account. We will not be liable for any loss that you incur as a result of someone else using your account, either with or without your knowledge. You may also be held liable for any losses incurred by 9zest, its affiliates, officers, directors, employees, consultants, agents and representatives due to someone else’s use of your account.
As a subscriber to our Services, you further agree as follows:
b. One Account Per User: You agree not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on this Website. If your registration or subscription is revoked for any reason (other than in cases where you are switching over from Business Premium Services to Non-Business Premium Service and vice versa), you agree not to register or subscribe again with our Services using another username or through any other means. If we have reason to suspect, in our sole discretion, that your account has previously been terminated, we reserve the right to terminate any new accounts you have registered without any notice to you, or to exercise any other remedies available to us under these Terms & Conditions or by law. We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.
9. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM 9zest & 9zest PARTNERS
In using the Services, you may receive periodic electronic communications from 9zest regarding the Services, such as new product offers and other information regarding the Services, which are part of the Services and which you cannot opt out of receiving. You may also receive periodic promotions and other offers or materials 9zest believes might be of interest to you. You can opt-out of receiving these promotional messages at any time by (a) following the unsubscribe instructions contained in each message; or (b) changing the messaging preferences in your account.
10. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS FROM USERS
As a subscriber to our Premium Services, you may elect to join and participate in group discussions (“9zest Group”) with other users that are facilitated by one or more person designated by 9zest and/or by a 9zest Partner (such person or persons, collectively, the “Facilitators”). By joining one of the 9zest Groups, which is a Public Forum, you may receive electronic communications, including group chat messages and/or private messages from Facilitators and other 9zest Group users who are also users of the same 9zest Group. 9zest Group users can see your user id and public profile, but will not see your email address. If you do not wish to receive messages from other users, you should not join a 9zest Group because such communications are part of the 9zest Groups which you cannot opt out of receiving. Whether you transmit any user content via private messaging or group chat feature, you agree to abide by our community standards and conduct guidelines at all times.
11. RESTRICTIONS ON USE OF MATERIALS
You acknowledge that our Services, Website and Application contain content, information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials, including nutritional information contributed to the Food Database (hereinafter defined) (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on the Services are trademarks of their respective owners. The 9zest Marks (hereinafter defined) are trade name and the registered trademark and service mark of 9zest, Inc.
Our commercial partners, 9zest Partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on our Services. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, phone, tablet or any other mobile device, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other applications or networked computer environment is strictly prohibited unless you receive our prior written consent.
We may at any time suspend your use of the Services and/or remove or disable any Content as to which we reasonably and in good faith believe is in violation of any of these Terms & Conditions. We will provide you with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Services or any third party, in which case we will notify you to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter.
The Services, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of 9zest. Furthermore, except for the limited license/rights granted herein, you will not (and will not encourage or assist any third party to): (i) modify, alter, tamper with, repair or otherwise create derivative works of the Services or any software included in or used or distributed by 9zest to provide access the Services; or (ii) reverse engineer, disassemble or decompile the Services, or attempt to discover or recreate the source code for the Services.
12. USER CONTENT
“User Content” is any content, materials or information (including without limitation, any text, information, photos, images, video, and other information) that you upload, send, email, display, perform, distribute, post or otherwise transmit to us, at our request or on your own, on, or through the Services, whether in connection with your use of the Services or through the use of any Third Party Websites or Third Party Services or otherwise, and whether publicly posted or privately transmitted.
You represent and warrant that, when using the Services, you will obey the law and respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY VIOLATIONS OF ANY LAWS AND FOR ANY INFRINGEMENTS OF THIRD-PARTY RIGHTS CAUSED BY YOUR USE OF THE SERVICES. YOU BEAR THE SOLE BURDEN OF PROVING THAT CONTENT, INFORMATION OR OTHER MATERIALS DO NOT VIOLATE ANY LAWS OR THIRD-PARTY RIGHTS.
You hereby grant 9zest, its directors, officers, employees, agents, affiliates, representatives, service providers, partners, sub-licensees, successors and assigns (collectively, the “9zest Parties”) a royalty-free, perpetual, irrevocable, sub-licensable, assignable, non-exclusive right (including any moral rights) and license (as well as consent) to use, license, reproduce, modify, adapt, publish, translate, transmit, edit, reformat, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform, display and otherwise use any User Content (in whole or in part and with or without the use of your name) worldwide and/or to incorporate the User Content in other works in any form, media, or technology now known or later developed, for the full term of any copyrights, trademarks and other intellectual and proprietary rights (collectively, the “Rights”) that may exist in such User Content.
The 9zest service makes it possible to post images, videos and text hosted on 9zest to outside websites. However, pages on other websites that display data hosted on 9zest must provide a link back to 9zest.com.
9zest may but have no obligation to (i) remove, suspend, edit or modify any User Content in its sole discretion at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if 9zest is concerned that you may have violated these Terms & Conditions or such User content is unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable), or for no reason at all and (ii) to remove, suspend or block any User Content. 9zest also reserves the right to access, read, preserve, and disclose any information as 9zest reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms & Conditions, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of 9zest, its users and the public.
You acknowledge that all User Content are the sole responsibility of the person who made such User Content. This means that you are entirely responsible for all User Content that you post, email or otherwise transmit to the Services. We do not control the User Content posted, emailed or otherwise transmitted on our Services by others and, as such, we do not guarantee the accuracy, integrity or quality of such User Content. Although we have adopted community standards and conduct guidelines for the users of the Services (as described below), you understand that by using the Services, you may be exposed to User Content that are offensive or objectionable. 9zest DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE USER CONTENT, ANY SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED HEREIN. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR ANY USER CONTENT (OTHER THAN FOR CONTENT DEVELOPED BY US), INCLUDING, BUT NOT LIMITED TO, FOR ANY ERRORS OR OMISSIONS IN ANY USER CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY USER CONTENT POSTED, EMAILED OR OTHERWISE TRANSMITTED TO OR THROUGH THE SERVICES.
13. COMMUNITY STANDARDS AND CONDUCT GUIDELINES
You agree that you will not (and/or will not use the Services to):
a. Upload, post, email or otherwise transmit any User Content or other materials that are unlawful, offensive, harmful, threatening, abusive, harassing, inflammatory, tortuous, defamatory, vulgar, libelous, slanderous, discriminatory, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole discretion);
b. Upload, post, email or otherwise transmit any User Content or other materials that contain adult content, including obscene, pornographic, and/or sexual terms, descriptions and/or images, nudity, profanity or graphic violence;
c. Upload, post, email or otherwise transmit any User Content or other materials that are inciting or encouraging criminal or terrorist activities or physical harm against another;
d. Upload, post, email or otherwise transmit any User Content or other materials that exploit political agendas or “hot button” issues for commercial use; or that contain hate speech based upon the race, sex, national original, religious affiliation, marital status, sexual orientation, gender identify, or language of an individual or group;
e. Harm minors in any way, or solicit or otherwise attempt to gain any information from a minor;
f. Advertise or otherwise solicit funds or constitute a solicitation for goods or services;
g. Impersonate any person or entity, including, but not limited to any user of the Services, a director, officer, employee, shareholder, agent or representative of 9zest, our affiliates or any other person or entity, or falsely state or otherwise misrepresent your affiliation with 9zest, or our affiliates or any other person or entity;
h. Provide false, misleading or inaccurate information to 9zest or any other user;
i. Create more than one unique public profile; register for more than one account, create an account on behalf of someone else, or create a false or misleading identity on the Services.
j. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content or other materials transmitted to or through the Services;
k. Upload, post, email or otherwise transmit any User Content or other materials that are not your own, or that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
l. Upload, post, email or otherwise transmit any User Content or other materials that infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party or that are deceptive, misleading or fraudulent or that may otherwise be unlawful or give rise to civil or criminal liability;
m. Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “phishing,” “chain letters,” “pyramid schemes,” or any other form of solicitation, opinions or notices, commercial or otherwise;
n. Upload, post, email or otherwise transmit any User Content or other materials that contain software viruses, spyware, adware, worms, or any other computer malware or malicious code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
o. Attempt to probe, scan or test the vulnerability of the Services or any associated system or network, or breach security or authentication measures without proper authorization;
p. Use or affect the Services in any manner that could damage, disable, overburden or impair the Services or its functionality, or disrupt the normal flow of dialogue (including, without limitation, “flooding,” “mail bombing,” or “crashing”), or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of the Services;
q. Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
r. Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
s. “Stalk” or otherwise harass another user or employee of the Services;
t. Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Services, including usernames or passwords;
u. Access or attempt to access another user’s account without his or her consent;
v. Reverse engineer, disassemble or decompile the Applications, or attempt to discover or recreate the source code for the Applications or any portion of the Services;
w. Assign, transfer or sublicense your rights as a registered user of the Services.
x. Disobey any requirements, procedures or policies or regulations connected to 9zest.com;
y. Use the 9zest service for any illegal or unauthorized purpose. International users agree to comply with all local laws regarding online conduct and acceptable content.
z. Copy, create a derivative work of, reverse engineer, or hack 9zest nor modify another website to falsely imply that it is associated with 9zest.
aa. Interfere with or disrupt 9zest or servers or networks connected to 9zest.com such as the transmission of worms, viruses, or any code of a destructive nature.
ab. Intentionally or unintentionally violate any applicable local, state, national, or international law.
You are responsible for keeping your password secure. You are responsible for any activity that occurs under your user account.
Your privilege to use the Services (including your ability to contribute to discussions on the Public Forum (hereinafter defined) or communicate with other users in a 9zest Group) depends on your compliance with the community standards and conduct guidelines set forth above. We may revoke your privileges to use all or a portion of the Services and/or take any other appropriate measures to enforce these community standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, or any part of these Terms & Conditions, we may terminate, in our sole discretion, your use of, or participation in, any Public Forum or the Services. Any violation of this section may subject you to civil and/or criminal liability.
YOU AGREE AND UNDERSTAND THAT YOU MAY BE HELD LIABLE FOR DAMAGES SUFFERED BY OTHER USERS OR THIRD PARTIES AS THE RESULT OF YOUR REMARKS, INFORMATION, FEEDBACK OR OTHER CONTENT POSTED OR MADE AVAILABLE ON THE SERVICES (INCLUDING ANY PUBLIC FORUM) THAT IS DEEMED DEFAMATORY OR OTHERWISE LEGALLY ACTIONABLE. UNDER THE FEDERAL COMMUNICATIONS DECENCY ACT OF 1996, 9zest IS NOT LEGALLY RESPONSIBLE, NOR CAN IT BE HELD LIABLE FOR DAMAGES OF ANY KIND, ARISING OUT OF OR IN CONNECTION TO ANY DEFAMATORY OR OTHERWISE LEGALLY ACTIONABLE REMARKS, INFORMATION, FEEDBACK OR OTHER CONTENT POSTED OR MADE AVAILABLE ON THE SERVICES.
14. PUBLIC FORUMS
You further acknowledge that by providing you with the ability to distribute User Content in the discussion forums, we are acting as a passive conduit for such distribution and we are not undertaking any obligation or liability relating to any User Content or activities in any Public Forum, nor do we endorse any such User Content. Although we reserve the right to monitor some, all, or no areas of the Services (including any discussion forum and 9zest Group) for adherence to the community standards and conduct guidelines set forth above and to remove, without notice, any User Content for any reason, we have no obligation to review Content prior to the Content’s posting or to delete User Content that you may find objectionable or offensive. We are not responsible for maintaining a copy of any material we remove from our Services, and we are not liable for any loss you incur in the event that Content you post or transmit to our Services is removed. 9zest DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR PUBLIC FORUMS AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR INFORMATION PROVIDED THEREON.
15. PUBLIC PROFILES; INFORMATION PROVIDED BY USERS
In order to join a 9zest Group or access similar services that provide Public Forums or interactions with other users, you may be required to create public profiles, which may contain certain identifying information (such as age, profile photos, location, total weight loss, ethnicity, etc.). In addition, users have the option to post photographs, videos and other information on their public profiles. 9zest relies on its users to provide current and accurate information, and 9zest does not, and cannot, investigate information contained in user public profiles. Accordingly, we must assume that information contained in each user public profile is current and accurate. 9zest DOES NOT REPRESENT, WARRANT OR GUARANTEE THE CURRENCY OR ACCURACY OF PUBLIC PROFILE INFORMATION, AND HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY INFORMATION PROVIDED BY USERS BY MEANS OF PUBLIC PROFILES OR OTHERWISE IN CONNECTION WITH THEIR USE OF THE SERVICES.
16. THIRD PARTY PRODUCTS AND SERVICES
Certain features, aspects, products and services offered through the Services are provided, in whole or in part, by third parties (“Third-Party Services” as provided by “Third-Party Service Providers”). In order to use Third-Party Services, you may be required to enter into additional terms and conditions with Third-Party Service Providers. These Terms & Conditions apply only to the Services, and not to the apps of any other person or entity. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products or other materials on or available from such apps or resources.
9zest DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM (I) YOUR USE OF OR RELIANCE ON, ANY CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES AVAILABLE ON ANY SUCH SERVICES OR RESOURCES (REGARDLESS OF WHETHER WE DIRECTLY OR INDIRECTLY LINK TO SUCH CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES) OR (II) YOUR INFORMATION COLLECTED OR USED BY THIRD-PARTY SERVICE PROVIDERS.
17. THIRD-PARTY WEBSITES
Certain Contents provided through our Services include links to websites of third parties (“Third-Party Websites”), some of whom may have established relationships with 9zest. We do not have control over the content and performance of Third-Party Websites. 9zest HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ANY OR ALL OF THE MATERIAL, INCLUDING COMPUTER SOFTWARE OROTHER GOODS OR SERVICES, MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES AND DOES NOT ENDORSE (AND IS NOT RESPONSIBLE OR LIABLE FOR) ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH THIRD PARTY WEBSITES. ACCORDINGLY, 9zest DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF THE INFORMATION MATERIAL, GOODS OR SERVICES AVAILABLE THROUGH THIRD-PARTY WEBSITES. 9zest DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF OR RELIANCE ON, ANY CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES AVAILABLE ON ANY THIRD-PARTY WEBSITES (REGARDLESS OF WHETHER WE DIRECTLY OR INDIRECTLY LINK TO SUCH CONTENT, ADVERTISEMENTS, PRODUCTS OR OTHER RESOURCES).
18. THIRD PARTY SOFTWARE
The Services may incorporate certain third party software (“Third Party Software”), which is licensed subject to the terms and conditions of the third party licensing such Third Party Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Third Party Software. In such event user hereby agrees to release, waive, indemnify and hold 9zest harmless from any and all losses, liabilities, or damages resulting from any and all claims, causes of action, suits, proceedings, or demands against 9zest arising from or related to use of Third Party Software by user.
NOTE: If a 9zest user has enabled third party software, such as Samsung S Health on their Mobile, 9zest may collect related personal information for the purpose of sharing data between between accounts. Such information can include: workout title, workout duration, workout difficulty, estimated and/or actual calories burned, and the time the workout was completed. The health data is stored on 9zest server and may be shared to 3rd parties in 9zest’s health ecosystem. Users can opt-out of the data synchronization at any time through the Settings options in 9zest’s App.
19. INTELLECTUAL PROPERTY
You acknowledge and agree that the Services and all intellectual property rights associated therewith are, and shall remain, the property of 9zest. Furthermore, you acknowledge and agree that the source and object code of the Website and/or Applications and the format, directories, queries, algorithms, structure and organization of the Website and/or Applications are the intellectual property and proprietary and confidential information of 9zest and its affiliates, licensors and suppliers. Except as expressly stated in these Terms & Conditions, you are not granted any intellectual property rights in or to the Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted in these Terms & Conditions are hereby reserved and retained by 9zest.
The Services may utilize or include third party software that is subject to third party license terms (“Third Party Software”). You acknowledge and agree that your right to use such Third Party Software as part of the Services is subject to and governed by the terms and conditions of the third party license applicable to such Third Party Software. In the event of a conflict between the terms of these Terms & Conditions and the terms of such third party licenses, the terms of the third party licenses shall control with regard to your use of the relevant Third Party Software.
9zest, 9zest.com, 9zest Coach, 9zest Health and the 9zest logo (collectively, the “9zest Marks”) are trademarks or registered trademarks of 9zest, Inc. Other trademarks, service marks, graphics, logos and domain names appearing on the Website and/or Applications may be the trademarks of third-parties. Neither your use of the Services, nor these Terms & Conditions, grant you any right, title or interest in or to, or any license to reproduce or otherwise use, the 9zest Marks or any third-party trademarks, service marks, graphics, logos or domain names. You agree that any goodwill in the 9zest Marks generated as a result of your use of the Services will inure to the benefit of 9zest, Inc., and you agree to assign, and hereby do assign, all such goodwill to 9zest. You shall not at any time, nor shall you assist others to, challenge 9zest’s right, title, or interest in or to, or the validity of, the 9zest Marks.
c. Copyrighted Materials; Copyright Notice
All content and other materials available through the Services, including without limitation the 9zest logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by 9zest or are the property of 9zest’s licensors and suppliers. Except as explicitly provided, neither your use of the Services nor these Terms & Conditions grant you any right, title or interest in or to any such content or materials.
d. Copyright Complaints
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our discretion, terminate the rights of any user to use our Services (or any part thereof) who infringes the intellectual property rights of others. We will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law.
If you have evidence, know, or have a good faith belief that your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact us and include the following information
- A physical or electronic signature of the owner of the copyright or a person authorized to act on behalf of the owner;
- Identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Website and/or Applications are covered by a single notification, a representative list of such works);
- Identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on our Website and/or Applications;
- Your name, mailing address, telephone number and email address;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement by you that the information in your notification is accurate, and that you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices with respect to the Services should be sent to our designated agent for notice of claims of copyright infringement: Attention: General Counsel, 9zest, Inc., 8 The Green, Dover, DE 19901, [email protected].
a. 9zest Group Disclaimer
As a subscriber to the Services, you may elect to join and participate in 9zest Group activities. 9zest Groups are designed to provide individuals with information, education and personal support. The Facilitators are peers, and will participate in the discussions in their personal capacity, despite any professional licensure held. In the event that the Facilitator happens to be a mental health professional or clinician, he/she may from time to time provide general information about psychological and emotional issues, but they are not authorized or permitted to use the Services to engage in rendering psychological or healthcare advice for any individual or for his or her particular situation.
9zest also reserves its right to oversee, lead and/or participate in any of the 9zest Groups with the help of professionals who may or may not hold advanced degrees in their professions and/or who may or may not be licensed in the state in which they reside (“Advanced Staff”). 9zest’s Advanced Staff may, but is not obligated to, participate in and/or lead one or more of the 9zest Groups and provide general information about psychological and emotional issues affecting health-related goals and change. However, none of the Advanced Staff is operating under his/her license, and under no circumstances shall such person be deemed to engage in rendering psychological or healthcare advice for any individual or for his/her particular situation by virtue of their education, experience or license. You represent to us that (which representation shall be deemed to be made each time you use the Services), you are not using the Services or participating in any of the 9zest Group activities offered by the Services for purpose of seeking medical attention.
9zest groups do not and will not provide medical, mental health or any other type of healthcare services and nothing contained in the services should be construed as any medical advice or diagnosis. Participation in any 9zest group is not and will not be deemed to be psychotherapy. No diagnosis or treatment of, or advice regarding, any medical or mental health condition or illness of any participant will be offered. The 9zest group cannot substitute for, and is not an alternative to, medical or other healthcare diagnosis and treatment when a medical or mental health condition or illness is present. Participants are advised to seek diagnosis, treatment and advice regarding medical or mental health conditions or illnesses from physicians, psychologists and other licensed healthcare professionals. Under no circumstances will any of your interactions with any facilitator, advanced staff or any user of the services be deemed or construed to create a physician-patient relationship or a fiduciary duty of any kind whatsoever. You are solely responsible for your interactions with facilitators, advanced staff and/or other users when using the services.
b. Health Disclaimers
We do not provide medical services or advice. The suggestions, recommendations, advice provided by our services do not contain or constitute, and should not be interpreted as, medical advice or opinion. No doctor-patient relationship is created.
Depending on your subscription level, you may have access to 9zest personal coaching services (“virtual coaching service”) . If you have access to our virtual coaching service, you will be able to interact with a coach, who may be an employee or a contractor of 9zest or personnel from an unaffiliated third party service provider or from a 9zest partner. Such individuals designated as a “coach”, “trainer”, “teacher” or “therapist” will assist users in developing skills to help them achieve their health related goals. Our advanced staff members may also act as a coach from time to time. 9zest may, in its sole discretion, engage or replace any coach with another without notice to the virtual coaching service users.
The inclusion of professionals and specialists on our website or application does not imply recommendation or endorsement of such professional nor is such information intended as a tool for verifying the credentials, qualifications, or abilities of any professional contained therein. Such information is provided on an “as-is” basis and we disclaim all warranties, either express or implied, including but not limited to the implied warranties of merchantability and fitness for particular purpose.
All information by our services is of a general nature. No information provided through our services or in any e-mail sent to you by 9zest is to be taken as medical or other health advice pertaining to any individual as specific health or medical condition. It remains your responsibility to evaluate the accuracy, completeness, and usefulness of all services.
The services are not substitute for the diagnosis and advice of your health care professional and the services must not be used in place of such diagnosis and advice. Do not delay seeking the diagnosis and advice of your health care professional because of anything you may have read or interpreted in the services. You must consult your healthcare professional before practicing any recommendations or acting on any services. The services are not to be interpreted as advocating the self-management of your medical condition(s) or those of your family.
All decisions made using services will be your exclusive responsibility. 9zest expressly disclaims any responsibility or liability for any adverse consequences or damages resulting from your reliance on services. You agree, at your expense, to release, waive, indemnify and hold 9zest harmless from any and all losses, liabilities, or damages resulting from any and all claims, causes of action, suits, proceedings, or demands against 9zest arising from or related to decisions or recommendations you make using services.
21. RISK ASSUMPTION; YOUR INTERACTIONS WITH OTHERS ON THE APPLICATIONS
9zest EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICES AND PARTICIPATION IN ANY OTHER ACTIVITIES OFFERED IN THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR PARTICIPATIONS IN ANY 9zest GROUP OR YOUR INTERACTIONS WITH ANY FACILITATOR, COACH OR ADVANCED STAFF. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. YOU ACKNOWLEDGE AND UNDERSTAND THAT 9zest HAS NOT, AND DOES NOT, IN ANY WAY (A) SCREEN ITS USERS, (B) INQUIRE INTO THE BACKGROUNDS OF ITS USERS, OR (C) REVIEW OR VERIFY THE STATEMENTS OF ITS USERS, INCLUDING WITHOUT LIMITATION INFORMATION OR REPRESENTATIONS CONTAINED IN PUBLIC PROFILES. YOU HEREBY AGREE TO EXERCISE REASONABLE PRECAUTION IN ALL INTERACTIONS WITH OTHER USERS, PARTICULARLY IF YOU DECIDE TO MEET ANOTHER USER IN PERSON. 9zest DOES NOT REPRESENT, WARRANT, ENDORSE OR GUARANTEE THE CONDUCT OF ITS USERS OR THEIR COMPATIBILITY WITH YOU.
22. USER DISPUTES
We reserve the right, but disclaim any perceived, implied or actual duty, to monitor disputes between users. You agree to release, waive, indemnify and hold 9zest harmless from any and all losses, liabilities, or damages resulting from any and all claims, causes of action, suits, proceedings, or demands against 9zest arising from or related to any dispute or claim you make against any other user.
23. DISCLAIMERS OF WARRANTIES
9zest, ON BEHALF OF ITSELF AND ITS AFFILIATES AND ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THE APPLICATIONS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, 9zest, ON BEHALF OF ITSELF, AND ITS AFFILIATES AND ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
NEITHER 9zest, ANY OF ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THE APPLICATIONS OR ANY FUNCTION CONTAINED IN THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APPLICATIONS OR THE SERVERS THAT MAKE THE APPLICATIONS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY PRODUCT, OFFERING, CONTENT AND MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL.
NEITHER 9zest, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM OUR PERSONNEL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS & CONDITIONS.
24. LIMITATION OF LIABILITY, WAIVER & HOLD HARMLESS
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL 9zest, ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE WEBSITE, OUR APPLICATIONS OR APPLICATIONS LINKED TO OUR APPLICATIONS, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICES; (F)THE USE OF SERVICES PROVIDED BY COACH OR ANY THIRD PARTY OR (G) ANY OTHER MATTER RELATING TO THE SERVICES.
YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY 9zest, ITS AFFILIATES AND ANY OF 9zest’S AND ITS AFFILIATES’ OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.
THE MAXIMUM LIABILITY OF 9zest AND ITS AFFILIATES AND ITS OR THEIR RESPECTIVE THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SERVICES. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN 9zest AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES, OR THESE TERMS & CONDITIONS MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THESE TERMS & CONDITIONS.
Without limiting any indemnification provisions of these Terms & Conditions, you agree to indemnify, hold harmless and, at our option, defend 9zest and our affiliates, and our and their respective officers, directors, users, employees, stockholders, managers, agents and representatives (collectively, “9zest Indemnified Parties”) from any and all third party claims, actions, demands, causes of action, liability, damages and/or costs (including, but not limited to, reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising from (i) your improper use of the Services or our products or offerings, (ii) your violation of these Terms & Conditions, (iii) your access to or use of the Services, (iv) your provision to 9zest or any of the Indemnified Parties of information or other data, (v) your infringement or alleged infringement, or the infringement or use (or alleged infringement or alleged use) by any other user of your account, of any intellectual property or other right of any person or entity, or (vi) your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation.
The Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify or hold harmless the Indemnified Parties. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.
26. GOVERNING LAW AND CHOICE OF FORUM
These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of the
Services or these Terms & Conditions shall be filed only in the state or federal courts located in the State of Delaware and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
Either party may terminate these Terms & Conditions and its rights hereunder at any time, for any or no reason at all, by providing to the other party notice of its intention to do so in accordance with these Terms & Conditions. These Terms & Conditions shall automatically terminate in the event that you breach any of these Terms & Conditions, representations, warranties or covenants.
9zest reserves the right to terminate a user based on misconduct, poor rating, complaints or not taking action to address to 9zest notice/s or warnings.
b. Effect of Termination; Survival
Any termination of these Terms & Conditions automatically terminates all rights and licenses granted to you under these Terms & Conditions, including all rights to use the Services except that Sections 1-3, 8, 10-25 will survive any termination of this Agreement. Subsequent to termination, 9zest reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Services, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
c. Legal Action
If we, in our discretion, take legal action against you in connection with any actual or suspected breach of these Terms & Conditions, we will be entitled to recover from you as part of such legal action, and you agree to pay, our reasonable costs and attorneys’ fees incurred as a result of such legal action. The 9zest Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of these Terms & Conditions.
28. FOREIGN USERS
Foreign users agree to abide by their local regulations and 9zest shall not be liable for any violations by foreign users.
29. MISCELLANEOUS TERMS
If any provision of these terms shall be found by a court of competent jurisdiction to be unlawful, invalid, void or voidable, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms & Conditions are the entire agreement between you and us relating to the subject matter herein. These Terms & Conditions may be modified only by our posting of changes to these Terms & Conditions on the Applications, or by written agreement of both parties. Each time you access the Applications, you will be deemed to have accepted any such changes. We may assign our rights and obligations under these Terms & Conditions. These Terms & Conditions will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms & Conditions, or to exercise any right under the Terms & Conditions, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.